Mwenda & 8 others (Suing on their behalf and as the officials of Bombolulu Coast Workshop for the Handicapped (BCWH)) v Association for the Physically Disabled of Kenya alias APDK & 6 others
The bottom line
#The Environment and Land Court in Mombasa dismissed a bid to reclaim land from APDK, confirming that registered titles in Kenya are protected unless fraud is clearly proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs were entitled to a permanent injunction
No. The plaintiffs failed to prove fraud and failed to meet the threshold for a permanent injunction; the registered proprietors hold prima facie conclusive evidence of ownership.
The court found the title under entry No 9 was registered in APDK's name on 29 November 2006 following a transfer executed by the sole surviving trustee. The trustee's affidavit of 20 February 2009 confirming he agreed to execute the transfer was never controverted. The plaintiffs' witnesses gave only hearsay, none having witnessed the signing, and the 1st plaintiff never testified despite being authorised to do so. No police report, medical evidence or caution was produced.
Whether the transfer of the suit property from BCWH to APDK was fraudulent and whether the title is challengeable
No. The transfer was lawful; BCWH was mutually wound up and handed over to APDK as a going concern, and APDK holds an indefeasible title under sections 24, 25 and 26 of the Land Registration Act.
The court applied section 26(1) of the Land Registration Act protecting indefeasible title, subject to challenge only on fraud or misrepresentation to which the proprietor is proved a party. It found the plaintiffs produced no tangible evidence of fraud, that resolutions and correspondence showed an agreed wind-up and handover of BCWH to APDK, and that section 80 rectification was therefore inapplicable.
Whether the plaintiffs had locus standi and whether the claim was time barred
The plaintiffs lacked locus standi, being neither registered owners nor registered members of BCWH, and their fraud claim founded on tort was time barred under section 4(2) of the Limitation of Actions Act.
The court adopted the defendants' submissions that the plaintiffs were beneficiaries, trainees and employees rather than registered members of BCWH, and that the pleadings contradicted themselves on ownership (paragraph 9 versus paragraph 21 of the plaint). It held the fraud cause of action accrued in 2005 and was discovered by 2008, so the three-year tort limitation period had expired, ousting the court's jurisdiction.
Who should bear the costs of the suit
The plaintiffs, having failed to establish their case, to bear the costs awarded to the 1st to 7th defendants.
Applying section 27(1) of the Civil Procedure Act and the principle that costs follow the event, as reinforced by the Supreme Court in Jasbir Singh Rai, the court held that the successful party is recouped for expenses. Since the plaintiffs lost, costs were awarded to the defendants.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership challengeable only on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme
- Costs follow the event under section 27(1) of the Civil Procedure Act; the successful party is compensated, not the losing party penalised
Court orders
#- 1.Suit filed by the plaintiffs and all the prayers sought dismissed
- 2.Declaration that the allegations of fraud in the acquisition of the suit property by APDK from BCWH were not proved and are barred by limitation of action, and hence dismissed
- 3.Declaration that the suit property is properly and legally registered in the names of the Association for the Physically Disabled of Kenya (APDK) with all indefeasible rights, title and interest vested in them, having been legally handed over by BCWH as a going concern
- 4.Costs of the suit awarded to the 1st to 7th defendants, to be borne by the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution); court also invoked Articles 22, 23 and 61 of the Constitution, the Civil Procedure Act cap 21 and the Land Registration Act No 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwenda & 8 others (Suing on their behalf and as the officials of Bombolulu Coast Workshop for the Handicapped (BCWH)) v Association for the Physically Disabled of Kenya alias APDK & 6 others", Case Analysis (2022). Environment & Land Case 74 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15279/eng@2022-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.