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ELCPartially AllowedEnvironment & Land Case 10 of 2013· [2023] KEELC 16263 (KLR)

Nguli & 2 others v Leli & another

Environment and Land Court of Kenya
13 March 2023
2,621 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a family's land title because they hid existing court orders while getting it through succession proceedings.

What this practically means

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Executive summary

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The plaintiffs, claiming to be absolute proprietors of land parcel Wamunyu/Kyamatula/296 by virtue of a certificate of title obtained through Machakos Succession Cause No 403 of 2015, sought a permanent injunction restraining the defendants from entering or possessing the suit land, plus costs. The defendants, by a defence and counter-claim, asserted that their father had purchased a portion of the suit land from the 3rd plaintiff, with additional payments acknowledged in agreements dated August 24 and 31, 1975, and that clan meetings, an assistant chief's letter, and prior court decisions confirmed their ownership and occupation. They sought a declaration of lawful ownership of the purchased portion and an order compelling the land registrar, Machakos to transfer it to them. The court found that two prior decisions - Tawa RMCC No 40 of 1984 and the decree of December 6, 2007 in Machakos CM Misc Application No 160 of 2007 - had awarded the defendants a portion of the suit land, and these were never appealed or set aside. The plaintiffs, despite the pendency of this suit, lodged succession proceedings in 2015 and obtained title without divulging the subsisting orders, thereby acquiring the certificate of title unprocedurally and through misrepresentation. Applying section 26(1) of the Land Registration Act and the clean hands doctrine, the court dismissed the plaintiffs' suit with costs and entered judgment for the defendants on the counter-claim: a declaration of lawful ownership of the purchased portion, an order directing the land registrar to transfer that portion to the defendants, and costs of the suit.

Key legal issues

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01

Whether the plaintiffs' certificate of title over Wamunyu/Kyamatula/296 was indefeasible

Holding

No - the title was obtained unprocedurally and through misrepresentation because the plaintiffs concealed from the succession court the subsisting court orders awarding the defendants a portion of the land

Reasoning

The court noted two prior decisions (Tawa RMCC No 40 of 1984 and Machakos CM Misc Application No 160 of 2007) awarding the defendants a portion of the suit land, which were never appealed or set aside. Despite the pendency of this suit, the plaintiffs lodged succession proceedings in 2015 and obtained title without divulging those orders. Under section 26(1) of the Land Registration Act, such a title is challengeable as unprocedurally acquired and through misrepresentation.

02

Whether the defendants proved ownership of a portion of the suit land

Holding

Yes - the defendants proved purchase and occupation of a portion, supported by agreements of 1975, clan meeting notes, and two court decrees never set aside

Reasoning

The court relied on agreements/acknowledgments of payment dated August 24 and 31, 1975, notes of clan and administration meetings from 1980 to 1997 showing defendants' occupation, the Land Disputes Tribunal proceedings, and the decree of December 6, 2007 in Machakos CM Misc Application No 160 of 2007, plus the Tawa RMCC No 40 of 1984 judgment, all remaining valid as no orders setting them aside were produced.

03

Whether the defendants were entitled to the relief sought in the Counter-claim

Holding

Yes - a declaration of lawful ownership of the purchased portion and an order compelling the land registrar to transfer that portion to the defendants

Reasoning

Since the defendants proved ownership of a portion of the suit land and two courts had already awarded them that portion which they occupied, the court found them entitled to the declaration and transfer orders sought in the Counter-claim, and entered judgment accordingly with costs.

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged on grounds of fraud, misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
  • A certificate for confirmation of grant cannot defeat valid court orders issued prior to the confirmation of the grant
  • He who comes to equity must come with clean hands, and injunctive remedies are equitable remedies

Court orders

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  1. 1.A declaration that the defendants are lawful owners of the purchased portion of the land parcel number Wamunyu/Kyamatula/296
  2. 2.The land registrar, Machakos is directed to transfer the said portion of the land parcel number Wamunyu/Kyamatula/296 to the defendants
  3. 3.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Land Registration ActSection 26(1)

Cases cited (7)

  • Giella Vs Cassman Brown Co Ltd

    Conditions for grant of injunctive relief

  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] eKLR

    Definition of prima facie case

  • M'bito Ntiro v Mbae Mwirichia & Another
    [2018] eKLR
  • Charles Karathe Kiarie & 2 others v Administrators of the estate of John Wallace Mathare (deceased) & 5 others
    [2013] eKLR
  • Cosmas Rombo Moka v Cooperative Bank of Kenya Limited & Anor
    Mombasa HCC No 7 of 2018
  • Joseph Kipchirchir Koech v Philip Cheruiyot Sang
  • Joseph N K Arap Ng'ok v Moijo Ole Keiwua & 4 Others
    [1997] eKLR

    Registered owner has absolute and indefeasible title challengeable only on grounds of fraud or misrepresentation

Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act over disputes relating to land

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, "Nguli & 2 others v Leli & another", Case Analysis (2023). Environment & Land Case 10 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16263/eng@2023-03-13

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