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ELCAllowedEnvironment & Land Case 30 of 2018· [2023] KEELC 16831 (KLR)

Mathenge v Gathuthi & 2 others

Environment and Land Court
13 April 2023
BEB M Eboso
1,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Thika court cancelled a rival land title, confirming that unexplained registrations cannot defeat an original owner's title.

What this practically means

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Executive summary

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The plaintiff, widow and administratrix of Ephraim Mathenge Waruingi (d. 1991), sued for a declaration that she is the lawful registered proprietor of Ruiru/Ruiru East Block 3/1709, a permanent injunction against the 1st defendant, cancellation of the title issued to the 1st defendant on August 12, 2005, and restoration of her title. She claimed the deceased acquired the land through balloting as a shareholder of Mwalimu Savings and Credit Co-operative Society, and that she was registered on April 17, 1997 pursuant to a confirmed grant in Eldoret High Court Succession Cause No 91 of 1991. In 2017 she learned that a parallel register had been opened in the name of the Government of Kenya on November 19, 2001, through which the property was allegedly transferred to the 1st defendant on August 12, 2005. She pleaded particulars of fraud. The 1st defendant did not enter appearance or file a defence despite being served; the 2nd and 3rd defendants filed a joint defence denying fraud but did not lead evidence at trial. Three witnesses testified for the plaintiff, including a fellow Sacco member who corroborated the balloting. The court framed a single issue: whether the plaintiff proved her case to the required standard. It found the registrations procured in the Government of Kenya's name and subsequently in the 1st defendant's name were illegal, the defendants having elected not to tender evidence. Judgment was entered for the plaintiff: declarations of her proprietorship and of the fraud and illegality of the rival register, cancellation and expungement of that register, an injunction against the 1st defendant, an order to the Land Registrar to open a new register in her name, and costs against the 1st and 2nd defendants.

Key legal issues

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Whether the plaintiff proved her claim of fraudulent and illegal registration of the suit property in the 1st defendant's name

Holding

Yes. The plaintiff held a title issued in 1997 and was in possession; a parallel register was later opened in the Government of Kenya's name and the property transferred to the 1st defendant in 2005. The defendants did not lead evidence to explain the registration.

Reasoning

The plaintiff testified and produced her title deed and an extract of the register showing the Government of Kenya was registered on November 19, 2001 and allegedly transferred the land to the 1st defendant on August 12, 2005. PW2 corroborated the deceased's balloting for the parcel. The 2nd and 3rd defendants entered appearance and filed a defence but did not lead evidence, and the 1st defendant did not enter appearance at all. The court found the registrations illegal and the plaintiff's case proved.

p. 3

Legal principles established

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  • Where a plaintiff holds a title and is in possession, and a rival registration is procured through a register opened in the name of the Government of Kenya, the subsequent registrations are illegal, particularly where the defendants decline to tender evidence on how the registration was obtained.

Court orders

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  1. 1.Declared that Jane Muthoni Mathenge is the lawful registered proprietor of land parcel number Ruiru/Ruiru East Block 3/1709
  2. 2.Restrained Ephraim Gathuthi from trespassing on, selling, advertising for sale, conveying, transferring or in any manner interfering with the plaintiff's ownership and enjoyment of the said land
  3. 3.Declared that the land register bearing Ephraim Gathuthi as proprietor and the registrations therein are fraudulent and illegal, and cancelled and expunged them from the Land Records
  4. 4.Ordered the Land Registrar to forthwith open a new register bearing Jane Muthoni Mathenge as proprietor of land parcel number Ruiru/Ruiru East Block 3/1709
  5. 5.1st and 2nd defendants to bear the plaintiff's costs of the suit
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title 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, "Mathenge v Gathuthi & 2 others", Case Analysis (2023). Environment & Land Case 30 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16831/eng@2023-04-13

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