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ELCDismissedCivil Suit 35 of 2021· [2022] KEELC 15336 (KLR)

Mwakirimu v Kinondo Amani Limited & another

Environment and Land Court of Kenya
14 December 2022
7,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's claim because his title rested on a tribunal decision that had been quashed for lacking jurisdiction.

What this practically means

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Executive summary

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The plaintiff, Seif Salim Mwakirimu, sued Kinondo Amani Limited (1st defendant) and Formation House Limited (2nd defendant) seeking declarations that the transfer and registration of Plot Kwale/Galu Kinondo/40 in the 1st defendant's name was null and void, cancellation of the 1st defendant's title, rectification of the register, and a declaration that he remained the rightful owner. He relied on a title deed issued on 14 December 2005 pursuant to the decision of the Msambweni Land Disputes Tribunal in Case No 20 of 2005, adopted as a judgment of the magistrates' court, and on prohibitory orders registered against the title. The 2nd defendant did not enter appearance. The 1st defendant, which bought the land for KShs 25,000,000 in April 2008 after official searches, maintained that the tribunal decision had been quashed by Maraga J in Mombasa High Court Misc Civil Application No 438 of 2006 for want of jurisdiction, that it took a valid title for value, and that the plaintiff never appealed that decision. The court held that the plaintiff's title, anchored on a quashed tribunal award, was a nullity that could not be saved by section 26(1) of the Land Registration Act; that the plaintiff failed to discharge the burden of proving ownership predating the 1974 registration of the first proprietor; that his evidence was riddled with contradictions; and that the 1st defendant, a diligent purchaser in possession, held an unimpeachable title. The claim of transfer during prohibitory orders was held to be a matter for appeal, not this suit. The suit was dismissed with costs to the 1st defendant.

Key legal issues

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01

Whether the plaintiff could claim ownership based on the title issued pursuant to the Msambweni Land Disputes Tribunal decision

Holding

No. The tribunal lacked jurisdiction over ownership disputes and its decision was quashed by Maraga J in Misc Civil Application No 438 of 2006; the plaintiff's title, founded on that nullity, could not stand.

Reasoning

The Land Disputes Tribunals Act confined tribunals to boundary, occupation and trespass disputes, not ownership. Maraga J quashed the tribunal award by certiorari and the plaintiff, an interested party in those proceedings, never appealed. A title resting on a quashed, jurisdiction-less decision is a nullity and cannot be rescued by section 26(1) indefeasibility.

p. 8
02

Whether the plaintiff proved ownership of the suit property independently of the tribunal judgment

Holding

No. The plaintiff failed to discharge the burden of proof under sections 107 and 108 of the Evidence Act; his evidence was contradictory and he produced no proof of family ownership predating the 1974 registration.

Reasoning

The register was opened on 15 November 1974 in favour of Rosemary Njoki Nyanjui; the plaintiff admitted he was about 13 in 1975, never lived on the land, and that third parties owned it for over 21 years. He produced no letter of allocation, no corroborating family witnesses, and no authority to sue for the family. His testimony was riddled with inconsistencies.

p. 9
03

Whether the 1st defendant's title could be impeached for fraud or for transfer during the pendency of prohibitory orders

Holding

No. The 1st defendant conducted due diligence, obtained a clean official search, took possession and developed the land; the prohibitory orders argument was a matter for appeal against Maraga J's decision, not this suit.

Reasoning

The root 1974 registration was never impugned, so subsequent transactions stood. Entry No 6 in favour of the 2nd defendant predated the prohibitory order, and Maraga J's order nullifying the plaintiff's title remained unchallenged. The 1st defendant was in possession and had registered a charge, while the plaintiff admitted he never lived on the land.

p. 11
04

Whether judgment in default could be entered against the 2nd defendant

Holding

No. No request for judgment or Deputy Registrar's endorsement appeared in the record, and Order 10 provides no interlocutory judgment where no liquidated damages are claimed.

Reasoning

The court examined Order 10 of the Civil Procedure Rules and found that in default of appearance the proper course is to fix the suit for formal proof. Any purported interlocutory judgment would be a nullity ab initio, and the court declined the invitation to enter judgment against the 2nd defendant.

p. 6

Legal principles established

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  • A title anchored on a decision that is a nullity cannot be salvaged by the indefeasibility provisions of section 26(1) of the Land Registration Act
  • Under section 26(1)(b) of the Land Registration Act a title need not be held by a party to the vitiating factors to be impeachable where it was acquired illegally, unprocedurally or through a corrupt scheme
  • Possession confers a better title against one who can show no better right; the burden lies on the person affirming that the possessor is not the owner (section 116, Evidence Act)
  • Fraud must be proved to a standard above a balance of probabilities

Court orders

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  1. 1.The suit is dismissed with costs to the 1st defendant

Authorities

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Legislation

  • Land Registration ActSection 26(1) and 26(1)(b)
  • Land Disputes Tribunals Act (repealed)Section 3(1)
  • Evidence ActSections 107, 108, 109, 112, 116, 157(3)
  • Civil Procedure Rules, 2010Order 10 Rules 4-9

Cases cited (11)

  • Wildlife Lodges Ltd Vs County Council of Narok & Ano
    EA 2005

    Court orders must be respected until set aside for illegality

  • Trusted Society of Human Right Alliance Vs Cabinet for Devolution and Planning & 3 Others
    (2017) eKLR

    Court orders must be respected until set aside

  • Republic v Kwale Senior Resident Magistrate's Court & another Ex parte Ndurya Said Ndurya
    [2015] eKLR

    Maraga J's decision remained good law; tribunal decisions on ownership are null

  • Shadrack Kinyanjui Wambui v Independent Electoral and Boundaries Commission & 2 Others
    [2017] eKLR

    Law of mootness

  • Macfoy Vs United Africa Limited
    (1961) All FR 1169

    A nullity cannot be salvaged; you cannot put something on nothing

  • Elijah Makeri Nyangwra _vs_ Stephen Mungai Njuguna & Another
    [2013] eKLR

    Import of section 26(1)(b) on impeachable titles

  • Ratil Patel Vs Lalji Makanji
    EA (1957)

    Fraud must be specifically pleaded and proved

  • Virjay Marjaria Vs Nansigh Darbar & Another
    (2000) eKLR

    Standard of proof for fraud

  • Pankajkumar Hemraj Shah & another v Abbas Lali Ahmed & 5 others
    [2019] eKLR

    Possession as root of title; possession is nine-tenths ownership

  • Benja Properties Limited vs Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR

    Titles ultimately based on possession; seisin is root of title

  • Ghana of Wuta-Ofei -v- Danquah
    [1961] All ER 596

    Slightest amount of possession is sufficient

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over ownership and title to land (Plot Kwale/Galu Kinondo/40)

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, "Mwakirimu v Kinondo Amani Limited & another", Case Analysis (2022). Civil Suit 35 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15336/eng@2022-12-14

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