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ELCPartially AllowedELC No 41 of 2012 (lead file, consolidated with ELC No E11 of 2020)· [2022] KEELC 3959 (KLR)

Kango Enterprises Limited & another v Unsworth (Sued as the administrator the Estate of John Fraser Unsworth) & 7 others (Suing as the administrator ad litem of the Estate of the Late Morris Ngole Machache) (Environment and Land Case Civil Suit 41 of 2012 & E11 of 2020 (Consolidated)) [2022] KEELC 3959 (KLR)

Environment and Land Court
5 August 2022
9,568 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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A Malindi court cancelled a fraud-tainted land title and ordered the State to pay Kshs 105 million, showing Kenya's courts will look past a title deed when fraud is proven.

What this practically means

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Executive summary

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Two consolidated Environment and Land Court suits at Malindi concerning Title Number Chembe/Kibabamshe/327. Kango Enterprises Limited (1st Plaintiff) claimed declarations of ownership, rectification of the register, vacant possession and an injunction, alleging the 1st Defendant's title was procured by imposters who forged the company's directorship. Grace Mgoi Mushimba, administratrix of the estate of Morris Ngole Machache (2nd Plaintiff), sought compensation from the State defendants after her late husband's 1984 title was cancelled in 1986 via Gazette Notice No 2505, with the land later allocated to Roving Investment (A) Limited and transferred to Kango and then to John Fraser Unsworth. A consent of March 21, 2022 recognized Kango as bona fide purchaser with the 2nd Plaintiff electing to pursue compensation against the State only. The court found the 2nd Plaintiff's suit not time barred, applying Section 26 of the Limitation of Actions Act since the claim was for relief from fraud and mistake. It held the 1st Defendant was not a bona fide purchaser: she paid twice, never searched the Companies Registry, and had been refunded her purchase price by a criminal court. The 1986 cancellation was declared unconstitutional and void, following Helena Kithinji and Regina Ngaku. Kango's suit was allowed as prayed, including rectification, vacant possession within 45 days and a permanent injunction. The 2nd Plaintiff was awarded Kshs 100,000,000 compensation plus Kshs 5,000,000 exemplary damages against the 3rd, 4th and 5th Defendants, with costs.

Key legal issues

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01

Whether the 2nd Plaintiff's suit was time barred under the Limitation of Actions Act

Holding

Not time barred; the claim is for relief from the consequences of a mistake/fraud, so limitation runs from discovery under Section 26 of the Limitation of Actions Act

Reasoning

Although the title was cancelled in 1986, the 2nd Plaintiff pleaded she was unaware of the cancellation. The claim is grounded in the illegality of the Commissioner of Lands' acts and falls under Section 26(a) and (c). Further, the subject land has been continuously litigated in criminal, succession and civil proceedings, and the husband was convicted of fraud in 2009, complicating discovery. The court found the action was for relief from a mistake that could not have been discovered with reasonable diligence.

p. 13
02

Whether the 1st Defendant is a bona fide purchaser for value without notice

Holding

No; the 1st Defendant failed the bona fide purchaser test

Reasoning

The 1st Defendant paid Kshs 13,440,000 to purported directors Kazungu and Oduor without searching the Companies Registry for the real directors (Ida Betty Odinga and Raila Odinga); upon learning the property belonged to the Mwambo Kai Family he paid a further Kshs 14,000,000, showing knowledge of the fraud. He was also a complainant in a criminal case where a refund of the purchase price was ordered. He therefore cannot be protected as a bona fide purchaser.

p. 14
03

Who is the rightful owner of the suit land

Holding

Kango Enterprises Limited is the rightful owner

Reasoning

The 1st Plaintiff's title dated May 6, 1999 tallied with the Green Card, whereas the 1st Defendant's title dated September 8, 1999 had an entry absent from the Green Card, indicating forgery. The perpetrators of the fraud were convicted in criminal proceedings. The consent between the 1st Plaintiff and 2nd Plaintiff recognized Kango as bona fide purchaser. Under Sections 26 and 80 of the Land Registration Act, the fraudulent title is impeachable and the register may be rectified.

p. 16
04

Whether the 2nd Plaintiff is entitled to compensation from the State defendants

Holding

Yes; the 1986 cancellation by the Commissioner of Lands was unconstitutional and void, entitling the estate to compensation

Reasoning

Relying on Helena Kithinji v Attorney General (Rawal J) and Regina Ngaku v Commissioner of Lands, courts had already declared the 1986 cancellation of titles in the Chembe/Kibabamshe scheme unconstitutional and void for breach of natural justice. Although the deceased surrendered the title and was later convicted of fraud, this did not legalize the cancellation. The court awarded Kshs 100,000,000 market value plus 5% exemplary damages, following Rose Kavita Mwivithi.

p. 14

Legal principles established

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  • A court faced with two or more competing titles over the same land must investigate the root of each title and uphold the one that conforms to procedure and traces its root without a break in the chain
  • Under Section 26(1)(b) of the Land Registration Act, a title may be impeached where it was acquired illegally, unprocedurally or through a corrupt scheme even if the title holder was not personally party to the fraud
  • A purchaser who fails to conduct due diligence, including a search of company records to verify directorship, cannot qualify as a bona fide purchaser for value without notice
  • Entries in a Green Card must tally with the title deed; an entry absent from the Green Card indicates forgery or an anomaly
  • Where a claim is based on fraud or relief from the consequences of a mistake, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud or mistake

Court orders

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  1. 1.A declaration that the Plaintiff (Kango Enterprises Limited) is the lawful proprietor of all that parcel of land known as Chembe/kibabamshe/327 and is entitled to legal and actual possession thereof
  2. 2.A declaration that the processing and issuance by the Commissioner of Lands and the Registrar of Titles of the title deed in the 1st Defendant's possession in respect of Chembe/kibabamshe/327 was fraudulent and/or erroneous and thus unlawful and a nullity
  3. 3.An order directing the Register of Titles to rectify the register
  4. 4.The 1st Defendant to give vacant possession within the next 45 days to the Plaintiff failing which eviction order to issue
  5. 5.A permanent injunction restraining the 1st Defendant, their agents, servants or otherwise howsoever from trespassing, encroaching, alienating, transferring, selling, leasing, charging or in any other way dealing with Chembe/kibabamshe/327
  6. 6.Costs of the suit with interest thereon at court rates to be paid by the Defendants (as against Kango's claim)
  7. 7.In ELC No E11 of 2020: the 3rd, 4th and 5th Defendants, or their successors in office, to pay to the 2nd Plaintiff compensation of Kshs 100,000,000 being the market value of the suit land
  8. 8.The 3rd, 4th and 5th Defendants, or their successors in office, to pay to the 2nd Plaintiff exemplary damages of Kshs 5,000,000, being 5% of Kshs 100,000,000
  9. 9.The 3rd, 4th and 5th Defendants, or their successors in office, to pay the 2nd Plaintiff's costs of the suit

Authorities

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Legislation

  • Registered Land Act (Cap 300, repealed)Sections 3, 35, 109(2)(b)(1), 143(1)
  • Land Registration Act No 3 of 2012Sections 26, 33, 80(1), 80(2), 106(1)
  • Limitation of Actions ActSections 7, 9, 13, 17, 26(a),(b),(c)
  • Government Proceedings Act (Cap 50)Section 13A
  • Constitution of KenyaArticle 259(1)
  • Civil Procedure RulesOrder 21(1)
  • Land Control Board consent provisionsLCB consent (referenced in evidence)
  • Gazette Notice No 2505 of May 30, 1986Cancellation notice - Chembe/Kibabamshe scheme
  • Commissioner of Lands Circular Letter Number 113936/55 of 1986Cancellation of titles

Cases cited (33)

  • Shimoni Resort v Registrar of Titles & 5 others
    [2016] eKLR
  • Katende v Haridar & Company Ltd
    [2008] 2 EA 173
  • Joseph Kipkoech Chemor v Kimaiyo Chemor & another
    [2019] eKLR
  • Esther Ndengi & Another v Gatei Mbugua
    (2020) eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Ruben & another v Great Fingall Consolidated
    [1906] AC 439
  • Mark Lecchini v Attorney General & another
    [2021] eKLR
  • Samuel Kamere v Lands Registrar Kajiado
    [2015] eKLR
  • Esther Ndegi Njiru & another v Leonard Gatei
    [2014] eKLR
  • Stanley Olonana Ntutu & 12 others v District Land Registrar, Narok & 3 others
    [2013] eKLR
  • Kingdom Kenya Limited v District Land Registrar, Narok & 15 others
    [2018] eKLR
  • Westminister City Council v Croyalgrange Limited
    [1986] 2 ALL ER 353
  • Republic v Kisumu District Lands Officer and another
    [2010] eKLR
  • Livingstone Kunini Ntutu v Minister of Lands & 4 others
    [2014] eKLR
  • Rose Kavita Mwivithi & 2 others v Commissioner of Lands & 5 others
    [2015] eKLR
  • Helena Kithinji vs the Attorney General
    [2002] eKLR
  • Kenya Bus Service Ltd & another v Minister for Transport & 2 others
    [2012] eKLR
  • David Peterson Kiengo & 2 others v Kariuki Thuo
    [2012] eKLR
  • Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Matahre (deceased) & 5 others
    {2013} eKLR
  • Eunice Grace Njambi Kamall & another v The Hon. Attorney General & 5 others; Lawrence P Muriuki v Attorney General & 4 others
    [2013] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Roads Authority & 4 others
    [2019] eKLR
  • Samwel D Omwenga Angwenyi v National Land Commission & 2 others
    [2019] eKLR
  • IGA v Makerere University
    [1972] EA 65
  • Edward Moonge Lengusuranga v James Lanaiyara & another
    [2019] eKLR
  • South Nyanza Sugar Co Limited v Mary A Mwita & Another
    [2018] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Nairobi HCCC No 3106 of 1997, Regina Ngaku & Others Vs Commissioner of Lands & 4 Others
    null
  • Lawrence Mukiri v Attorney General & 4 Others
    null
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another
    Eldoret ELC Case No 609 B of 2012
  • Hubert L. Martin & 2 Others V Margaret J Kamar & 5 Others
    [2016] eKLR
  • Mary Ruguru Njoroge Vs John Samuel Gathuma Mbugu
    [2014] eKLR
  • John Fraser Unsworth vs Kango Enterprises and 2 Others
    Malindi Civil Appeal No 332 of 2012
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); consolidated suits heard and determined in the first instance

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kango Enterprises Limited & another v Unsworth (Sued as the administrator the Estate of John Fraser Unsworth) & 7 others (Suing as the administrator ad litem of the Estate of the Late Morris Ngole Machache) (Environment and Land Case Civil Suit 41 of 2012 & E11 of 2020 (Consolidated)) [2022] KEELC 3959 (KLR)", Case Analysis (2022). ELC No 41 of 2012 (lead file, consolidated with ELC No E11 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3959/eng@2022-08-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.