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ELCPartially AllowedEnvironment & Land Case 642 of 2013· [2022] KEELC 14743 (KLR)

Gitukui v Njuguna & 3 others; Njoroge & 5 others (Interested Parties)

Environment and Land Court of Kenya
10 November 2022
9,631 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title obtained through a fraudulent transfer, confirming that the first buyer of double-allocated land keeps it.

What this practically means

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Executive summary

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The Plaintiff sued for cancellation of the title held by the 1st and 2nd Defendants over Nairobi/Block 117/513, registration in her name, an injunction and general damages for trespass, alleging she purchased the property from the 3rd Defendant, Kamiti Farmers Company Limited, in 2001 for Kshs 250,000. The 3rd Defendant counter-claimed, seeking a declaration that the transfer of the property to the 1st and 2nd Defendants was fraudulent, rectification of the register and restoration of the property to its name. The 1st and 2nd Defendants claimed allocation as shareholders at a 2005 meeting and a Certificate of Lease dated 17th September 2012. The court framed five issues and found that the Plaintiff's purchase documents were not discredited; that the property, having been sold and allocated to her in 2001, was not available for reallocation in 2005; and that the 1st and 6th Interested Parties, who executed the 2012 transfer, were not officials of the 3rd Defendant at the material time, rendering the transfer void ab initio. The 1st and 2nd Defendants, knowing the transferors were not officials, were held parties to the fraud. Judgment was entered for the Plaintiff: the 1st and 2nd Defendants' title was cancelled and a permanent injunction issued, but she was denied damages for trespass and direct registration, being directed to pursue transfer from the 3rd Defendant once the property was restored to it. The 3rd Defendant's counter-claim succeeded as to declaration, rectification, restoration and injunction, but general damages were refused for want of proved loss. Costs were awarded to the Plaintiff and the 3rd Defendant.

Key legal issues

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01

Ownership of the suit property as between the Plaintiff and the 1st and 2nd Defendants

Holding

The Plaintiff proved on a balance of probabilities that she lawfully purchased and was allocated the property in 2001; it was not available for allocation to the 1st and 2nd Defendants in 2005.

Reasoning

The Plaintiff produced a receipt, certificate of ownership and letter of introduction whose veracity was not shaken in cross-examination. The 1st and 2nd Defendants' allocation was doubtful: their names were absent from the list of attendees, the list was stamped years later, and the transfer preceded their share certificate. Under the double-allocation principle, the first allotment prevails.

p. 12
02

Whether the 1st and 6th Interested Parties had capacity to transfer the suit property

Holding

They were not officials of the 3rd Defendant on 20th April 2012; the transfer was illegal, null and void.

Reasoning

A letter from the Registrar General dated 31st May 2011 identified the directors of the 3rd Defendant following elections on 23rd March 2011, and the 1st and 6th Interested Parties were not among them. No evidence showed a subsequent election or cancellation of the 2011 elections. IPW1 admitted the court order he relied on did not make him chairman.

p. 12
03

Whether the 1st and 2nd Defendants' title should be cancelled

Holding

Yes; the title was void and was acquired illegally and fraudulently, and the register was liable to rectification under section 143 of the Registered Land Act.

Reasoning

The 1st and 2nd Defendants knew through association that the 1st and 6th Interested Parties were not officials of the 3rd Defendant, and so aided and abetted the fraud. In any event, a transfer by persons without capacity was void ab initio and a nullity which conferred no interest, following Macfoy v United Africa Co Ltd.

p. 15
04

Reliefs in the plaint and counter-claim

Holding

Plaintiff entitled to cancellation of title and injunction but not damages for trespass or direct registration; 3rd Defendant entitled to declaration, rectification, restoration and injunction but not general damages.

Reasoning

The Plaintiff established her claim on a balance of probabilities but proved no trespass and must pursue transfer from the 3rd Defendant once the property is restored to it. The 3rd Defendant proved the counter-claim but no damage or loss was shown to justify general damages.

p. 15

Legal principles established

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  • Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of how the title was acquired, not merely produce the title instrument.
  • Where land has been allocated, it cannot be reallocated unless the first allocation is validly and lawfully cancelled.
  • A transfer effected by persons without legal capacity to effect it is void ab initio and confers no interest on the transferee.

Court orders

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  1. 1.The title held by the 1st and 2nd Defendants in respect of Nairobi/Block 117/513 is cancelled.
  2. 2.The 3rd Defendant shall make arrangements to transfer the suit property to the Plaintiff in accordance with their agreement once the property is restored to the name of the 3rd Defendant.
  3. 3.A permanent injunction is issued restraining the 1st and 2nd Defendants from interfering with the suit property.
  4. 4.A declaration is issued that the conduct of the 1st to 4th Defendants in the counter-claim, including the purported sale/transfer of the suit property and the resultant Certificate of Title, are tainted with fraud, illegality, impropriety, irregularity and corrupt scheme.
  5. 5.The register of the suit property is rectified by cancellation of entries numbers 3 and 4 through which the 1st and 2nd Defendants were registered as owners.
  6. 6.The 3rd Defendant is restored in the register of the suit property as the duly registered owner subject to order 1(b).
  7. 7.A permanent injunction is issued restraining the 1st to 4th Defendants in the counter-claim from entering, encroaching, selling, advertising, transferring, alienating or otherwise dealing with the suit property.
  8. 8.Costs of the suit awarded to the Plaintiff and costs of the counter-claim awarded to the 3rd Defendant.

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 26
  • Registered Land Act (Chapter 300, Laws of Kenya) (repealed)Sections 27, 28, 30, 143(1) and (2)
  • Civil Procedure ActSection 27

Cases cited (17)

  • Kenya National Highway Authority v Shalien Masood Mughal & 5 others
    [2017] eKLR

    Plaintiff's submission on ownership under Sections 24 and 25 of the Land Registration Act

  • Republic v City Council of Nairobi & 2 others
    [2014] eKLR

    Beneficial interest and the effect of an allotment letter conferring absolute right of ownership

  • Tsuma Mwangala & 5 others v Julius Karisa Deche
    [2021] eKLR

    Plaintiff's submission on rightful ownership

  • Hubert L. Martin & 2 others v Margaret J. Kamar & 5 others
    [2016] eKLR

    Where two titles compete, the court must investigate the root of each and uphold the one that conformed to procedure

  • Magdalene Wanjiku Ndung'u v Jane Njoki Njuguna
    [2020] eKLR

    A title can be impeached if its root is investigated and found to be illegally acquired

  • Merit Development Limited v Lenana Investment Limited & 2 others
    [2018] eKLR

    A title acquired through fraud should be cancelled

  • Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another
    [2013] eKLR

    Cancellation of titles acquired through fraud

  • Rajendra Sanghani & another v Fairmile Investments Limited & another
    [2021] eKLR

    Titles acquired through fraud or false pretences should be cancelled

  • Daudi Kiptugen v Commissioner of Lands, Nairobi & 4 others
    [2015] eKLR

    The process of acquisition of title is material; title not acquired through proper process is not good title

  • Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others
    [2013] eKLR

    Interested Parties' submission on legality of the Certificate of Lease

  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR

    Interested Parties' submission on due diligence

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR

    A registered proprietor whose root of title is challenged must prove legality of acquisition beyond the title instrument

  • John Muchiri Mbuthia v Rebecca Were Mutanda & another
    [2015] eKLR

    Interested Parties' submission on legality of the Certificate of Lease

  • Kamau James Njendu v Serah Wanjiru & another
    [2018] eKLR

    In double allocation of land, the first allotment prevails

  • M'Ikiara M'Rinkanya & another v Gilbert Kabeere M'Mbijiwe
    (1982-1988) 1 KAR 196

    Where there was double allocation of land, the first allotment prevails

  • Rukaya Ali Mohamed v David Gikonyo Nambacha & another
    Kisumu HCCA No 9 of 2004

    An allotment letter, once conditions are met, confers absolute right of ownership unless challenged or fraudulently acquired

  • Macfoy v United Africa Co Ltd
    [1961] 3 All ER 1169

    A void act is a nullity; no order of court is needed to set it aside

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to ownership of land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gitukui v Njuguna & 3 others; Njoroge & 5 others (Interested Parties)", Case Analysis (2022). Environment & Land Case 642 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14743/eng@2022-11-10

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