Midiwo v Onjiro & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction over challenges to first registration
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Section 26 of the Land Registration Act permits challenge of titles acquired by fraud or unprocedurally, unlike the repealed Registered Land Act's Section 143(1) bar.
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.
Limitation
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.
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.
Competence of suit against the 1st defendant in respect of parcel 1539
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.
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.
Proof of fraud
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.
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.
Rectification under Section 80
The transfer of parcel 1578 to the 1st defendant was cancelled and the parcel restored to Onjiro Mganda's name.
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.
Legal principles established
#- 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
#- 1.The plaintiff's claim that the suit properties were fraudulently and illegally registered in the name of Onjiro Mganda is dismissed
- 2.The transfer of land parcel number North Ugenya/Masat/1578 from the name of Onjiro Mganda to the 1st defendant is cancelled
- 3.Land parcel number North Ugenya/Masat/1578 is restored in the name of Onjiro Mganda
- 4.Each party shall bear their respective costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.