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ELCPartially Allowed· [2023] KEELC 595 (KLR)

Siringi v Makori & 5 others (Environment and Land Case Civil Suit 691 of 2016) [2023] KEELC 595 (KLR)

Environment and Land Court
9 February 2023
8,588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a fraudulent land transfer and ruled that even innocent buyers and a bank lost their interests because the original transfer was void.

What this practically means

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Executive summary

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The plaintiff, registered owner of Title No. Ngong/Ngong/26365 since 1st July 2011, sued six defendants after learning in June 2016 that the property had been fraudulently transferred to the 1st defendant, his estranged wife who held his original title deed and personal documents, then sold to the 2nd and 3rd defendants who charged it to the 6th defendant bank. The 1st defendant never entered appearance. The plaintiff sought a permanent injunction, rectification of the register, a declaration of ownership, general damages and costs. The 2nd and 3rd defendants pleaded due diligence and the innocent purchaser defence; the 4th and 5th defendants (land officials) denied involvement in fraud; the 6th defendant relied on its due diligence as chargee. The court framed five issues and held that the strained marital relationship, the implausible consideration of Ksh 1,000,000/- against a purchase price of Ksh 2,900,000/-, the absence of spousal and Land Control Board consents, and the uncontroverted fraud allegations proved that the transfer to the 1st defendant was fraudulent, illegal, null and void. Applying Macfoy v United Africa Co Ltd, the court held that a void title conveyed nothing, so the 2nd and 3rd defendants' title and the 6th defendant's charge were equally nullities. The innocent purchaser defence was unavailable against the plaintiff's prior legal interest, and the section 80(2) Land Registration Act / section 143(2) RLA protection applies only to proprietors holding valid titles. Judgment was entered for the plaintiff: a permanent injunction, rectification of the register by cancelling the impugned entries, restoration of the property to the plaintiff, and costs against the 1st defendant. General damages were not awarded.

Key legal issues

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01

Whether the 1st defendant acquired the suit property lawfully

Holding

No - the transfer to the 1st defendant was fraudulent, illegal, null and void.

Reasoning

The relationship between plaintiff and 1st defendant was strained and they communicated only through lawyers by 2013; the plaintiff was in Mombasa. The alleged consideration of Ksh 1,000,000/- against a 2011 purchase price of Ksh 2,900,000/- was implausible, and between spouses transfers are normally for love and affection with waived stamp duty. The uncontroverted fraud allegations against the unrepresented 1st defendant, absence of spousal and Land Control Board consents, and the swift onward sale all pointed to fraud. The transfer was therefore a nullity.

p. 13
02

Whether the 2nd and 3rd defendants acquired valid title and could rely on the innocent purchaser defence

Holding

No - they acquired only the 1st defendant's void title; the innocent purchaser defence was unavailable against the plaintiff's prior legal interest.

Reasoning

Applying Macfoy, a void title conveyed nothing: nemo dat. The 2nd and 3rd defendants were not proven parties to the fraud, but the Arthi Highways authority shows the bona fide purchaser defence only operates against equitable interests; the plaintiff held a legal interest enforceable irrespective of notice. A fraudulent and illegal interest in land however innocently acquired cannot prevail against a valid legal interest. Their title, rooted in the fraudster's nullity, was itself null and void.

p. 13
03

Whether the 6th defendant's charge was valid

Holding

No - a charge cannot attach to or be created over a null and void title.

Reasoning

The 6th defendant conducted due diligence and was innocent of the fraud, but its charge was created over the 2nd and 3rd defendants' invalid title. An invalid title is a nullity with no proprietary interest to which the charge could attach. Hence the charge collapsed with the root title, notwithstanding the chargee's innocence.

p. 14
04

Whether rectification of the register was available despite defendants' innocence

Holding

Yes - section 80(2) LRA / section 143(2) RLA protection applies only to proprietors with valid titles, not holders of void titles.

Reasoning

Although the plaintiff did not prove that the 2nd, 3rd and 6th defendants were parties to or had notice of the fraud, the section 80(2) protection presupposes a valid proprietary interest. Since the 1st defendant's void title was the root of the downstream interests, those interests had no base to stand on. Rectification by cancelling the illegal transfers and charge was warranted so the legitimate owner is not divested.

p. 14
05

Costs

Holding

The 1st defendant, as the fraudster, to bear the plaintiff's costs.

Reasoning

The court attributed the entire chain of transactions to the 1st defendant's fraud: she fraudulently transferred the property to herself and sold it to the 2nd and 3rd defendants who charged it to the 6th defendant. The 1st defendant, having never entered appearance, bore responsibility for the litigation, and costs followed that finding against her alone.

p. 14

Legal principles established

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  • A transfer obtained by fraud is a nullity that confers no proprietary interest and cannot found a valid derivative title or charge.
  • A void title is incurably bad and every proceeding founded on it collapses without the need for an order setting it aside (applying Macfoy v United Africa Co Ltd).
  • The innocent purchaser protection under section 143(2) RLA / section 80(2) LRA does not shield a holder of a void title or charge.
  • A charge created over an invalid title is itself invalid.

Court orders

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  1. 1.A permanent injunction restraining the defendants, their servants and/or agents from having any dealings with Title No. Ngong/Ngong/26365 save for entering thereon to vacate and hand over possession to the plaintiff
  2. 2.The 4th and 5th defendants shall forthwith rectify the register of Title No. Ngong/Ngong/26365 by cancelling entries numbers 11, 12, 13 and 14 in the proprietorship section and entry number 1 in the encumbrance section
  3. 3.The 4th and 5th defendants shall forthwith restore the proprietorship of Title No. Ngong/Ngong/26365 to the name of the plaintiff
  4. 4.The plaintiff shall have the costs of the suit to be paid by the 1st defendant

Authorities

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Legislation

  • Land ActSection 36(1)
  • Land Registration Act 2012Sections 24, 25, 26, 80(1) and 80(2)
  • Registered Land Act, Chapter 300 Laws of Kenya (repealed)Sections 27, 28, 143(1) and 143(2)
  • Evidence Act, Chapter 80 Laws of KenyaSections 107, 109 and 112
  • Civil Procedure RulesOrder 2 Rule 4

Cases cited (13)

  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Mwangi James Njehia v Janetta Wanjiku Mwangi & another
    [2021] eKLR
  • Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 Others
    Nairobi Civil Appeal No. 146 of 2014
  • Katende v Haridar & Company Ltd
    (2008) 2 EA 173
  • Hannington Njuki v William Nyanzi
    High Court Civil Suit Number 434 of 1996
  • Alberta Mae Gacie v Attorney General & 4 Others
    [2006] eKLR
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR
  • Wambui v Mwangi & 3 others
    (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR)
  • Arthi Highways Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Macfoy v United Africa Co. Ltd.
    (1961) 3 All ER 1169
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Karugi & another v Kabiya & 3 others
    [1987] KLR 347
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property; proceedings under the Civil Procedure Act and Rules (Order 2 Rule 4 cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Siringi v Makori & 5 others (Environment and Land Case Civil Suit 691 of 2016) [2023] KEELC 595 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/595/eng@2023-02-09

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