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ELCPartially AllowedELC Civil Suit No 312 of 2009· [2022] KEELC 3969 (KLR)

Shah & another v Juma & 2 others (Environment and Land Case Civil Suit 312 of 2009) [2022] KEELC 3969 (KLR)

Environment and Land Court
28 July 2022
LKL Komingoi
11,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court declared Jacob Juma's Loresho land title fake and fraudulent, confirming the buyers' ownership and awarding them Kshs 50 million in damages.

What this practically means

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Executive summary

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The plaintiffs sued the 1st defendant (Jacob Juma, since deceased, represented by his widow) together with the Commissioner of Lands and Registrar of Titles over competing titles to LR No 18485, Loresho, Nairobi. Both parties claimed grants bearing the same number (IR 64011): the plaintiffs traced their title to a March 12, 1993 letter of allotment to Liney Company Limited, whose shares and sole asset were bought by PW4 and his wife in 1994 and the land sold to the plaintiffs in 2007; the 1st defendant claimed allocation by a letter of allotment dated March 1, 1992 and a grant registered on August 16, 1994. The court found that under the repealed Government Lands Act a part development plan must precede a letter of allotment; the 1st defendant's allotment letter predated the approved part development plan, his offer lapsed for late payment, and his allotment showed 6 hectares against a grant of 7.390 hectares. A former Commissioner of Lands and Ministry officials disowned the 1st defendant's documents and described a syndicate at the Ministry of Lands. Applying section 26(1) of the Land Registration Act and Munyu Maina, the court held the 1st defendant failed to prove the legality of his root of title and that his title was fake and fraudulent. The plaintiffs proved their case on a balance of probabilities. The court issued a permanent injunction, declared the plaintiffs legal owners and the 1st defendant's title fake and fraudulent, and awarded general damages for trespass of Kshs 50,000,000, with costs and interest. Judgment delivered by L Komingoi, J on July 28, 2022.

Key legal issues

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01

Who was lawfully allotted the suit property

Holding

Liney Company Limited was lawfully allotted the suit property; the 1st defendant's alleged allocation was invalid because his letter of allotment preceded the approval of the part development plan and flouted the statutory allocation procedure

Reasoning

PW2, DW2 and DW3 were unanimous that under the repealed Government Land Act a part development plan must be prepared and approved before a letter of allotment is issued. The 1st defendant's letter of allotment dated March 1, 1992 predated the part development plan approved on March 3, 1993, which was impossible. Liney Company Limited's allocation followed the correct sequence of planning, valuation and allotment, and its grant was registered on December 5, 1994.

p. 16
02

Which title is genuine and whether the 1st defendant's title was fraudulent

Holding

The plaintiffs' title is genuine; the 1st defendant's title was obtained illegally, unprocedurally and through a scheme involving collusion with officers at the Lands Registry

Reasoning

The 1st defendant could not explain the root of his title: his letter of allotment was for 6 hectares but the grant was for 7.390 hectares, payment was made six months after the 30-day deadline invalidating the offer, no approval number appeared on his allotment letter, and two grants shared the same LR and IR numbers. Following Munyu Maina, a proprietor must prove legality of acquisition beyond the title document; the 1st defendant failed to do so.

p. 18
03

Whether the plaintiffs are entitled to damages for trespass

Holding

General damages for trespass assessed at Kshs 50,000,000/- given the prime location and value of the property and interference since 2008

Reasoning

Trespass was proved through the 1st defendant's unlawful interference with the plaintiffs' possession since 2008. The court relied on Park Towers and Caroget Investment, noting there is no mathematical formula for general damages, and considered the location (prime land in Loresho, Nairobi) and the 2007 valuation of Kshs 252,000,000 in arriving at a reasonable award of Kshs 50,000,000.

p. 19

Legal principles established

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  • A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of how the title was acquired
  • Under the repealed Government Lands Act, a part development plan must be drawn and approved before unalienated Government land could be allocated
  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected by indefeasibility under section 26(1) of the Land Registration Act
  • A court of law cannot allow a party to benefit from an illegal process

Court orders

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  1. 1.Permanent injunction restraining the 1st defendant and/or his servants/agents from trespassing, selling, transferring, constructing, charging, interfering or in any other manner dealing with the suit property LR No 18485 (IR No 64014), Loresho, Nairobi
  2. 2.Declaration that the plaintiffs are legal owners of LR 18485 (IR No 64014), Loresho, Nairobi, by virtue of transfer dated March 21, 2007 registered in the lands registry, Nairobi
  3. 3.Declaration that the title held by the 1st defendant is fake and fraudulent and that he has no legal right or claim over the suit property
  4. 4.General damages for trespass of Kshs 50,000,000/-
  5. 5.Costs of the suit and interest

Authorities

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Legislation

  • Government Land Act (repealed)Cap 280
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (18)

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Stanley Mombo Amuti v KACC
    [2019] eKLR
  • Arthi Highways Ltd v West End Butchery Ltd & 6 others
    [2015] eKLR
  • Caroget Investment Limited v Aster Holdings Limited & 4 others
    [2019] eKLR
  • Lawi Ongweya v Republic
    (1964) EA 129
  • Asira v Republic
    [1983] KLR 227
  • Re Estate of Gitau Njoroge ‘B’ (Deceased)
    [2018] eKLR
  • Joseph NK Arap Ng’ok v Moijo Ole Keiwua & 4 others
    [1997] eKLR
  • Wreck Motor Enterprises v The Commissioner of Lands & 3 others
    [1997] eKLR
  • Gitwany Investment Limited v Tajmall Limited & 3 others
  • West End Butchery v Arthi Highway Developers Limited & 6 others
    [2012] eKLR
  • Katende v Haridas and Company Limited
    [2008] 2 EA 173
  • Dennis Noel Mukhulo Ochwada v Elizabeth Murungari Njoroge & another
    [2018] eKLR
  • George Kamau Njuguna & another v Florence Wairimu Mbugua & 4 others
    [2018] eKLR
  • Faustine Omwana Kweyu v Carol Majuma Wanyonyi & another
    [2017] eKLR
  • Surkhdev Singh Laly v Philip Ojwang Kamau & 3 others
    [2018] eKLR
  • Nelson Kazungu Chai & 9 others v Pwani University
    [2014] eKLR
  • Park Towers v Moses Chege & others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Shah & another v Juma & 2 others (Environment and Land Case Civil Suit 312 of 2009) [2022] KEELC 3969 (KLR)", Case Analysis (2022). ELC Civil Suit No 312 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3969/eng@2022-07-28

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