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ELCPartially AllowedEnvironment & Land Case 37 of 2021· [2022] KEELC 15199 (KLR)

Midiwo v Onjiro & 3 others

Environment and Land Court of Kenya
8 December 2022
3,024 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land transfer done without succession, but dismissed the fraud claim because the owner couldn't prove it with solid records.

What this practically means

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Executive summary

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The plaintiff sued the 1st defendant and three land-registration authorities, claiming he was the lawful and beneficial owner of one half share of North Ugenya/Masat/1578 and 1539. He alleged that during land adjudication the parcels were registered in his and his brothers' names, but the defendants fraudulently and unprocedurally removed their names and registered Onjiro Mganda (the 1st defendant's father) and later the 1st defendant, who took the title without obtaining letters of administration. He sought declarations of ownership, rectification or cancellation of the registers, subdivision and fresh title deeds, and costs. The 1st defendant denied the claim, raised jurisdiction and limitation objections, and asserted the plaintiff was a trespasser. The court framed four issues: jurisdiction and limitation, competence, proof, and orders. It held it had jurisdiction because Section 26 of the Land Registration Act permits challenge of titles acquired by fraud or unprocedurally, and the limitation period ran from the plaintiff's alleged discovery of fraud in September 2020. The suit was competent against the 1st defendant on parcel 1578, which he held, but incompetent on parcel 1539, still registered in the deceased Onjiro Mganda's name, since the 1st defendant had no grant of representation. Although the 1st defendant's registration of parcel 1578 was admittedly unprocedural, the plaintiff failed to prove the pleaded fraud: he produced no adjudication records, the greencards showed no cancelled entries in his favour, and he called no siblings. The fraud claim was dismissed, but the transfer of parcel 1578 to the 1st defendant was cancelled and the parcel restored to Onjiro Mganda's name, with each party bearing their own costs.

Key legal issues

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01

Jurisdiction over challenges to first registration

Holding

The court had jurisdiction because Section 26 of the Land Registration Act permits challenge of titles acquired by fraud or unprocedurally, unlike the repealed Registered Land Act's Section 143(1) bar.

Reasoning

The 1st defendant argued Section 29 of the Land Adjudication Act ousted jurisdiction since the claim arose from adjudication. The court held that Section 26 of the Land Registration Act opens an avenue to challenge a title regardless of the circumstances of registration, and Section 80 empowers rectification, so jurisdiction existed.

p. 5
02

Limitation

Holding

The suit was not statutory barred because the limitation period for fraud runs from discovery, and the plaintiff discovered the fraud on 16/09/2020.

Reasoning

Fraud is tortious with a three-year limitation period, but under Section 26 of the Limitation of Actions Act time runs from discovery. The plaintiff consistently testified he discovered the fraud on 16/09/2020 and this evidence was uncontroverted, so the claim was filed in time.

p. 5
03

Competence of suit against the 1st defendant in respect of parcel 1539

Holding

The suit was competent against the 1st defendant on parcel 1578 (which he held) but incompetent on parcel 1539, still registered in the name of the deceased Onjiro Mganda.

Reasoning

Only a person with a grant of letters of administration may represent a deceased's estate. The 1st defendant admitted no succession was done on parcel 1539, which remained registered in Onjiro Mganda's name, so no claim could accrue against the 1st defendant over that parcel.

04

Proof of fraud

Holding

Fraud was not sufficiently proved; the plaintiff produced no adjudication records, greencards showed no cancelled entries in his favour, and he did not call his siblings or join the adjudication officer.

Reasoning

Although the 1st defendant's registration of parcel 1578 was unprocedural (no succession having been done), the plaintiff failed to prove that he or his brothers were ever registered as proprietors or that their names were fraudulently removed, or that the two parcels were consolidated. Parties are bound by their pleadings and the pleaded fraud was not established.

p. 6
05

Rectification under Section 80

Holding

The transfer of parcel 1578 to the 1st defendant was cancelled and the parcel restored to Onjiro Mganda's name.

Reasoning

It was not in dispute that the 1st defendant was unprocedurally registered as proprietor of parcel 1578 without succession on Onjiro Mganda's estate. Section 80 empowers the court to order rectification by cancelling the register, so the parcel reverted to the original registered owner.

p. 6

Legal principles established

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  • A first registration may be challenged under Section 26(2)(b) of the Land Registration Act where the title was acquired by fraud, misrepresentation, illegality, unprocedurally or through a corrupt scheme
  • Fraud must be specifically pleaded and proved to a standard above a balance of probabilities
  • A claim in fraud is subject to a three-year limitation period running from discovery of the fraud
  • A registered proprietor cannot be exonerated from proceedings until Section 80 rectification cancelling his name from the register is effected

Court orders

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  1. 1.The plaintiff's claim that the suit properties were fraudulently and illegally registered in the name of Onjiro Mganda is dismissed
  2. 2.The transfer of land parcel number North Ugenya/Masat/1578 from the name of Onjiro Mganda to the 1st defendant is cancelled
  3. 3.Land parcel number North Ugenya/Masat/1578 is restored in the name of Onjiro Mganda
  4. 4.Each party shall bear their respective costs of the suit

Authorities

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Legislation

  • Land Adjudication ActSections 26, 29
  • Land Registration ActSections 26, 26(2)(b), 80
  • Registered Land Act (repealed)Section 143(1)
  • Limitation of Actions ActSection 26

Cases cited (5)

  • Isaya Masira Momanyi v Daniel Omwoyo & another
    [2017] eKLR

    Only a person with a grant of letters of administration has capacity to represent a deceased's estate in legal proceedings

  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR

    Fraudulent conduct must be distinctly alleged and distinctly proved, not inferred from facts

  • Robert Kulinga Nyamu v Musembi Mutunga
    (Supra)

    Cited with approval of Dume Deri Mumbo on challenging titles raising new causes of action

  • Dume Deri Mumbo & 19 others v Cabinet Secretary of Lands, Housing & Urban Development & 6 Others
    [2016] eKLR

    Titles can be challenged where they raise a new cause of action

  • Elijah Kipng'eno Arap Bii v KCB & Another
    Civil Appeal Number 276 of 2018

    Fraud must be specifically pleaded; standard of proof is above balance of probabilities

Jurisdiction invoked
Sections 26 and 80 of the Land Registration Act (jurisdiction to challenge titles acquired by fraud/unprocedurally and to rectify 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, "Midiwo v Onjiro & 3 others", Case Analysis (2022). Environment & Land Case 37 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15199/eng@2022-12-08

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