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ELCPartially AllowedEnvironment & Land Case E015 of 2021· [2023] KEELC 17259 (KLR)

Eedi Motor Services Limited v Devani & 3 others; Koroma & another (Interested Parties)

Environment and Land Court of Kenya
9 May 2023
7,117 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled two fraudulently obtained land titles, ruling that even an innocent buyer loses the land if the original transfer was fraudulent.

What this practically means

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Executive summary

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The plaintiff, Eedi Motor Services Limited, bought parcel Cis-Mara/Ilmashariani-Morijo/3834 (1.5 acres, Narok) from the 1st interested party in August 2014 for Kshs.10,500,000/-, charged it to Diamond Trust Bank for Kshs.9,000,000/- in March 2015, and on attempting discharge in 2021 discovered transfers registered on 30th August 2018 to the 1st defendant and on 14th October 2020 to the 2nd defendant. It sued for declarations of fraud, cancellation of the titles, injunction and removal of structures. The 2nd defendant defended as an innocent purchaser for value relying on an official search; the Registrar and Attorney General denied fraud; the bank confirmed it never issued a discharge of charge, the loan having been repaid only in September 2020. The court framed three issues: proof of the plaintiff's case, whether the 2nd defendant was an innocent purchaser, and entitlement to relief. Applying the strict standard for proving fraud, it found the transfers fraudulent, noting the unexplained discharge of charge of 16th August 2018 and the Registrar's failure to produce the transfer documents from the plaintiff to the 1st defendant, said to be with the DCI. It held the 2nd defendant followed due process and was an innocent purchaser, but reasoned that a fraudulent root transfer could not sustain its ownership, invoking Section 80(1) of the Land Registration Act and the first-in-time principle. Judgment was entered for the plaintiff: declarations of lawful ownership and fraud, cancellation of both titles, a permanent injunction, removal of structures, with costs to the 1st, 2nd and 3rd defendants. The court noted the 2nd defendant's remedy against the 1st defendant for the purchase price and damages.

Key legal issues

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01

Whether the plaintiff proved fraud in the transfers to the 1st and 2nd defendants

Holding

Yes - fraud was proved against the 1st and 3rd defendants; the discharge of charge of 16th August 2018 was never issued by the chargee and the Registrar could not produce the transfer documents

Reasoning

The green card showed the property was charged to the 2nd interested party on 17th March 2015, yet a discharge of charge was registered on 16th August 2018 while the loan was still running. The bank denied issuing any discharge. The Land Registrar produced only documents for the transfer from the 1st to the 2nd defendant, claiming others were with the DCI, and could not explain inconsistencies in the green card entries.

p. 11
02

Whether the 2nd defendant is an innocent purchaser for value without notice

Holding

The court found the 2nd defendant followed due process and was an innocent purchaser for value, yet still cancelled its title

Reasoning

The 2nd defendant conducted an official search showing the 1st defendant as registered owner, paid the purchase price, obtained consent and paid stamp duty. It did not inspect the green card. The court held it was an innocent purchaser but reasoned that innocence cannot sustain ownership founded on a fraudulent root transfer, leaving it a claim against the 1st defendant for the purchase price and damages.

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Whether the plaintiff was entitled to cancellation of the impugned titles and rectification of the register

Holding

Yes - under Section 80(1) of the Land Registration Act the court ordered rectification by cancelling the titles of the 1st and 2nd defendants

Reasoning

Having found the transfer to the 1st defendant fraudulent, the court invoked Section 80(1) of the Land Registration Act permitting rectification where a registration was obtained or made by fraud or mistake, and granted the declarations, cancellation, injunction and removal of structures as prayed in the plaint.

Legal principles established

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  • A property cannot have two valid title deeds; where two titles exist, the first in time prevails
  • Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities but below proof beyond reasonable doubt
  • The register may be rectified where a registration was obtained, made or omitted by fraud or mistake
  • Innocence of a subsequent purchaser does not defeat rectification where the root transfer was fraudulent

Court orders

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  1. 1.Declaration that the plaintiff is the lawfully registered owner/proprietor of land parcel number Cis-Mara/Ilmashariani-Morijo/3834
  2. 2.Declaration that the transfers registered on 30/8/2018 and 14/10/2020 in favour of the 1st and 2nd defendants are fraudulent, unlawful, null and void and of no effect
  3. 3.Revocation and cancellation of the title deeds issued in favour of the 1st and 2nd defendants on 30/8/2018 and 14/10/2020 respectively
  4. 4.Permanent injunction prohibiting the 1st and 2nd defendants or any person claiming under them from entering, trespassing into or interfering with the plaintiff's ownership and possession of the suit property
  5. 5.Order directing the 2nd defendant to forthwith remove any structures or developments erected on the suit property
  6. 6.Costs of the suit to be borne by the 1st, 2nd and 3rd defendants

Authorities

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Legislation

  • Evidence ActSection 107(1)
  • Land Registration ActSection 26
  • Land Registration ActSection 80(1)
  • Land Registration ActSection 34
  • Constitution of KenyaArticle 40
  • Government Proceedings ActSection 13A

Cases cited (26)

  • Evanson Wambugu Gachugi versus Simon Wainaina Gatwiki & 2 Others
    [2014] eKLR

    Prerequisites for lawful registration of a transfer, including Land Control Board consent

  • Richard Gitau Muguro versus Benson Macharia Wandungo & 2 Others
    [2017] eKLR

    Entitlement to prayers where fraudulent transfers are established

  • Arthi Highway Developers Limited versus West End Butchery Limited & 6 Others
    [2015] eKLR

    Due diligence obligations of a purchaser investigating root of title

  • In Esther Ndegi Njiru & Another versus Leornard Gatei
    [2014] eKLR

    Duty to investigate root or history of vendor's title

  • Antony Ted Andrew Hoareau versus Mary Muthoni Wanjohi
    [2018] eKLR

    Due diligence in land purchases

  • Martha Wangui Thurura & Another versus Henry Gitahi Thurura & 3 Others
    [2021] eKLR

    Due diligence in land purchases

  • Samuel Odhiambo Oludhe & 2 Others versus Jubilee Jumbo Hardware Limited & Another
    [2018] eKLR

    Due diligence in land purchases

  • Marjorie Waithera Wambugu & Another versus Grace Wairimu Gachie & 4 Others
    [2018] eKLR

    Due diligence in land purchases

  • Julius Kariuki Muiruri versus Smart Top Media Limited & Another
    [2018] eKLR

    Powers under Sections 26 and 80 of the Land Registration Act to cancel titles

  • Mutsonga versus Nyati
    [1984] eKLR 425

    Fraud must be specifically pleaded and proved

  • Elizabeth Wambui Githinji & 29 Others versus Kenya Urban Roads Authority & 4 Others
    [2019] eKLR

    Burden of proving fraudulent dealings

  • Shimoni Resort versus Registrar of Titles & 5 Others
    [2016] eKLR

    Protection of a purchaser relying on official records

  • Elijah Githinji Charara versus County Land Registrar Laikipia & 2 Others
    [2018] eKLR

    Rights of a purchaser relying on the register

  • Charles Karathe Kiarie & 2 Others versus Administrators of the Estate of John Wallace Mathare (deceased) & 5 Others
    [2013] eKLR

    Requirements of a bona fide purchaser for value

  • Peter Kiengo & 2 Others versus Kariuki Thuo
    [2012] eKLR

    Bona fide purchaser doctrine

  • Zebak Limited versus Nadem Enterprises
    [2016] eKLR

    Bona fide purchaser doctrine

  • R.G Patel versus Lalji Makanji
    (1975) EA 314

    Fraud must be specifically pleaded and proved; transferee must be involved in the fraud

  • Alfred Sagero Omweri versus Kennedy Omweri Ondieki
    [2015] eKLR

    Proof of fraud against a party

  • Kampala Bottlers Limited versus Damanico (U) Limited
    East Africa Law Reports [1990-1994] E.A 141 (SCU)

    Proof of fraud

  • Central Bank of Kenya versus Trust Bank Limited & 4 Others
    [1996] eKLR

    Onus of proof of fraud

  • Urmila w/o Mahendra Shah versus Barclays Bank International Limited & Another
    [1979] eKLR

    Onus of proof of fraud

  • Vijay Morjaria versus Nansingh Madhusingh Darbar & Another
    [2000] eKLR

    Fraud must be specifically pleaded and proved

  • Karugi & Another versus Kabiya & 3 Others
    [1987] KLR 347

    Burden of proof lies on the party alleging

  • Koinange & 13 Others versus Koinange
    [1986] KLR 23

    He who asserts must prove; fraud must be strictly proved beyond balance of probabilities

  • Katende versus Haridar & Company Limited
    [2008] 2 E.A. 173

    Elements a purchaser must prove to rely on the bona fide purchaser doctrine

  • Gitwany Investment Limited versus Tajmal Limited & 3 Others
    [2006] eKLR

    Where two titles exist, the first in time prevails

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over land title and registration disputes; rectification powers under Section 80 of the Land Registration Act

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, "Eedi Motor Services Limited v Devani & 3 others; Koroma & another (Interested Parties)", Case Analysis (2023). Environment & Land Case E015 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17259/eng@2023-05-09

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