Cherutich v Mburu & 4 others; Equity Bank Limited (Interested Party) (Environment & Land Case 4 of 2013) [2022] KEELC 3355 (KLR)
The bottom line
#A Kenyan court cancelled land titles obtained without a valid lease, ruling an original allottee with approved late payment owns the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's allocation lapsed for failure to pay the stand premium within 30 days
The court held it did not lapse; the Advisory Committee approved acceptance of the late payment.
Although the plaintiff paid the balance of the premium only in February 2007, outside the 30-day period in the allotment letter, the Advisory Committee on March 12, 2007 recommended acceptance and the Commissioner approved on April 4, 2007 with the remarks 'approved accept payment'. PW3 corroborated that the late payment was approved, and there being no cancellation of the first allotment, the land was not available for allocation to anyone else.
Whether the certificate of lease issued to the 2nd defendant and passed down the chain was legally acquired
It was fraudulent, null and void, as no lease was ever prepared or forwarded to the Land Registrar.
The statutory process requires the Commissioner of Lands to prepare a lease and forward it with a covering letter to the Land Registrar before a certificate of lease can issue. PW3 confirmed no lease was prepared and DW2, the Land Registrar, confirmed no forwarding letter or lease was in the parcel file. With no lease, no certificate of lease could lawfully issue to the 2nd defendant, so the 2nd and 3rd defendants had no valid title to pass to the 1st defendant.
Whether the 1st defendant is a bona fide purchaser for value without notice
He is not, since his vendors had no apparent valid title and he did not prove payment of the purchase price.
Applying the Katende v Haridar ingredients, a bona fide purchaser must show the vendor had apparent valid title and that consideration was paid. The 1st defendant's vendors had no valid title to pass. Further, the transfer was not signed by the Land Registrar, the sale agreement stated Kshs 2,000,000 was paid in cash on execution contrary to his testimony of a Kshs 400,000 deposit, and he produced no proof of payment of the purchase price.
Whether the register should be rectified
Yes, under Section 80(1) of the Land Registration Act, the registration having been obtained by fraud or mistake.
Section 80(1) empowers the court to order rectification where a registration was obtained, made or omitted by fraud or mistake. The plaintiff proved on a balance of probabilities that the registration chain originated in a certificate of lease issued without any lease, a fraudulent and mistaken registration, and that the plaintiff held a valid allotment whose conditions were met and payment approved.
Legal principles established
#- A certificate of title may be challenged on grounds of fraud or misrepresentation to which the proprietor is a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme (Section 26(1) Land Registration Act).
- Once a letter of allotment has been issued and the allottee meets the conditions therein, the land is no longer available for allocation to any other person unless the first allotment is cancelled or revoked by the allotting authority.
- A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of how he acquired the title.
Court orders
#- 1.A declaration that the plaintiff is the rightful owner of that parcel of land known as Eldoret Municipality Block 6/320
- 2.An order compelling the 4th defendant to rectify the register of the suit property by cancelling the irregular title issued to the 1st, 2nd and 3rd defendants and registering the plaintiff in their place
- 3.Costs of the suit to be borne by the defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land (Land Registration Act, 2012, Sections 26(1) and 80(1) invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherutich v Mburu & 4 others; Equity Bank Limited (Interested Party) (Environment & Land Case 4 of 2013) [2022] KEELC 3355 (KLR)", Case Analysis (2022). Not stated in the judgment as provided (plaint dated December 10, 2012, amended February 21, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3355/eng@2022-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.