Kimundia & 2 others (Suing as Administrators of the Estate of Edward Kamau Wairi - Deceased) v Chief Lands Registrar & 3 others (Environment & Land Case 42 of 2015) [2023] KEELC 682 (KLR)
The bottom line
#The Environment and Land Court cancelled a Runda property title bought through a forged power of attorney and ordered the buyers to pay Kshs. 12 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the deceased donated the general power of attorney dated 5/02/1991
The deceased did not donate the power of attorney; it was fraudulent and a forgery, and therefore null and void
The court held the plaintiffs bore the legal burden but, having denied execution of the power of attorney, the evidential burden shifted to the 3rd and 4th Defendants, who called no evidence to prove the deceased executed it. The forensic examiner's uncontroverted report concluded the signature was made by a different author. An adverse inference was drawn from their failure to testify on that fact.
Whether the suit property was lawfully transferred to the 3rd and 4th Defendants
The transfer was unlawful as it was executed under a non-existent power of attorney and had no foundation in law
Since there was no valid power of attorney conferring authority on Annie Wangechi Wairi to sell on behalf of the deceased, the transfer executed pursuant to it could not be a valid transfer. The sale could not rest on a lawful and binding contract between the deceased and the attorney.
Whether the 3rd and 4th Defendants' title is impeachable under Section 26 of the Land Registration Act
The title was liable to cancellation under Section 26(1)(b) as it was acquired illegally, unprocedurally or through a corrupt scheme, even though they were not parties to the fraud
The court found no proof the purchasers were party to the fraud under Section 26(1)(a), but held that Section 26(1)(b) removes protection even from innocent holders where the title was obtained illegally, unprocedurally or through a corrupt scheme. Since the conveying documents were forged, the title was impeachable and was cancelled, with the estate to be registered as owner.
Whether general damages for trespass were payable
General damages of Kshs. 12,000,000.00 were awarded, trespass being actionable per se, despite absence of valuation evidence
The court accepted that trespass is actionable per se and that specific damage need not be proved, but noted the plaintiffs provided no valuation report. Taking account of the length of time of the trespass and the cost of restoring the land, the court awarded Kshs. 12,000,000.00, mirroring the 2008 consideration.
Legal principles established
#- Although the legal burden of proof remains constant on the plaintiff, the evidential burden shifts to the party against whom judgment would be entered if no further evidence were introduced
- Where a party fails to adduce evidence on a fact especially within its knowledge, the court may infer the evidence would have been adverse to that party
- Under Section 26(1)(b) of the Land Registration Act, the title of even an innocent holder is impeachable where it was acquired illegally, unprocedurally or through a corrupt scheme
- A transfer founded on a forged power of attorney is an outright illegality and conveys no valid title
- Trespass to land is actionable per se, without proof of specific damage
Court orders
#- 1.A permanent injunction restraining the 3rd and 4th Defendants from trespassing, occupying, alienating, dealing in any manner or otherwise interfering with L.R no. 7785/288
- 2.A mandatory injunction to the 1st Defendant to rectify the Land Register for L.R no. 7785/288 by removing Transfer Entry No. 4 forthwith unconditionally
- 3.Revocation of any documents of ownership held by the 3rd and 4th Defendants in regard to LR no. 7785/288
- 4.The 3rd and 4th Defendants given six (6) months' notice to vacate the suit property, failure to which an eviction order to issue
- 5.The 3rd and 4th Defendants to pay Kshs. 12,000,000.00 being general damages for trespass
- 6.The Defendants to bear the costs of the suit jointly and severally with interest at court rate from the date of judgment until payment in full
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title and occupation of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimundia & 2 others (Suing as Administrators of the Estate of Edward Kamau Wairi - Deceased) v Chief Lands Registrar & 3 others (Environment & Land Case 42 of 2015) [2023] KEELC 682 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/682/eng@2023-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.