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ELCPartially AllowedEnvironment and Land Case Civil Suit 498 of 2015· [2022] KEELC 14566 (KLR)

Wanjiku v Wainaina (Sued on his own behalf and on behalf of the Estate of Teresia Wanjiku Wainaina) & 2 others

Environment and Land Court
3 November 2022
3,551 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A registered Kenyan landowner won a trespass case against occupants holding a fraudulent parallel title, but was denied an order to exhume remains buried on the land.

What this practically means

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Executive summary

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The plaintiff sued the 1st defendant (on his own behalf and on behalf of the estate of Teresia Wanjiku Wainaina), Githunguri Ranching Co. Ltd and the Thika District Land Registrar, claiming ownership of Ruiru Kiu Block 2/3442. He purchased the property from Stephen Mwangi Maina (deceased) in 2009, was registered on February 24, 2015, and found Wanjiku and the 1st defendant in occupation with a parallel title allegedly fraudulently issued. He sought declarations, eviction, exhumation of remains buried on the land, a permanent injunction, cancellation of the Wanjiku title, and general damages for trespass. The 1st defendant and Wanjiku claimed over 30 years' occupation and asserted their own registered title, alleging the plaintiff's title was fraudulently obtained in collusion with the deceased's estate. The 2nd and 3rd defendants did not defend. The 1st defendant's case closed when he failed to attend the hearing. The court found the plaintiff's title proved with a satisfactory root, and the parallel title in Wanjiku's name fraudulent, since she was only entitled to Ruiru Kiu Block 2/3204. Uncontroverted, the plaintiff's evidence established trespass. The court declared the plaintiff the lawful proprietor, ordered the 1st defendant and Wanjiku's estate to vacate and demolish structures within 120 days failing which eviction may issue under section 152G of the Land Act, issued a permanent injunction, ordered the 3rd defendant to cancel the fraudulent register, and awarded Kshs 100,000 general damages against the 1st defendant. Exhumation was refused for lack of proof and elapsed time. The claim against the 2nd defendant was dismissed with each party bearing its own costs; costs against the 1st and 3rd defendants payable by the 1st defendant.

Key legal issues

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01

Proof of the plaintiff's title and root of title

Holding

The plaintiff proved he was the legally registered owner with a satisfactory root of title, having produced the title deed and extract of register showing registration on February 24, 2015

Reasoning

The plaintiff produced a copy of the title deed in his name and an extract of the register showing registration on February 24, 2015. His chain of title from Paul Kamau Mbugu through the deceased Stephen Mwangi Maina was corroborated by PW2, an advocate involved in the transfers, and PW3, a former director of the 2nd defendant who confirmed the ballot allocations.

p. 4
02

Fraudulent parallel title held by Wanjiku

Holding

The title held by Wanjiku over the suit property was illegally and fraudulently acquired since she was only entitled to Ruiru Kiu Block 2/3204

Reasoning

Evidence showed Wanjiku's husband balloted for and was allotted Ruiru Kiu Block 2/3204 under Ballot No 1353, which she transferred to Rebecca Waringa on February 7, 2003, the same date a second title was issued to her for the suit property, which was allotted under Ballot No 1480 to Paul Kamau Mbugu. The 1st defendant adduced no evidence to controvert this.

p. 4
03

Trespass by the 1st defendant and Wanjiku

Holding

Having failed to tender evidence, the 1st defendant and Wanjiku had no justifiable cause for entering and occupying the suit property and are trespassers

Reasoning

The 1st defendant's case was closed after he and his advocate failed to attend the hearing on February 1, 2022. His defence alleging a valid title and fraudulent acquisition by the plaintiff was unsupported by any evidence. The plaintiff's testimony that they entered without his consent was unchallenged, so the claim in trespass was proved.

p. 6
04

Liability of the 3rd defendant (Land Registrar)

Holding

The fraudulent title could not have been issued without collusion between Wanjiku and the 3rd defendant, so the claim against the 3rd defendant was proved

Reasoning

The plaintiff proved the parallel register was opened on February 7, 2003 while the property was allocated to another under a different ballot. The court inferred collusion from the fact of the fraudulent issuance and ordered the Registrar to cancel the register and all entries including Wanjiku's registration and title.

p. 6

Legal principles established

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  • Title to land carries with it legal possession, so a registered proprietor with title is deemed in possession for purposes of trespass even without actual possession
  • Registration of a person as proprietor of land vests absolute ownership, and a register may be rectified by cancellation of an entry obtained by fraud or mistake
  • Where a defendant fails to tender evidence, uncontroverted evidence of the plaintiff stands and the onus shifts to the defendant to justify occupation

Court orders

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  1. 1.Declaration that the plaintiff is the lawful proprietor of title No Ruiru Kiu Block 2/3442
  2. 2.Declaration that the 1st defendant and the estate of Wanjiku have no valid claim over the suit property; they to move out and demolish their structures at their own cost within 120 days, failing which the plaintiff may apply for warrants of forceful eviction under supervision of the OCS Ruiru Police Station, complying with section 152G of the Land Act, 2012
  3. 3.Permanent injunction restraining the 1st defendant and his agents from trespassing, entering or interfering with the suit property after vacating or being evicted
  4. 4.The 3rd defendant to cancel forthwith the register for title No Ruiru Kiu Block 2/3442 opened on February 7, 2003 and all entries therein, including the registration of Teresia Wanjiku Wainaina and the title issued to her
  5. 5.Kshs 100,000/- general damages for trespass against the 1st defendant
  6. 6.Costs of the suit against the 1st and 3rd defendants payable by the 1st defendant
  7. 7.Suit against the 2nd defendant dismissed with each party bearing its own costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land title, trespass and rectification of the register

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, "Wanjiku v Wainaina (Sued on his own behalf and on behalf of the Estate of Teresia Wanjiku Wainaina) & 2 others", Case Analysis (2022). Environment and Land Case Civil Suit 498 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14566/eng@2022-11-03

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