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ELCPartially AllowedEnvironment & Land Petition 45 of 2017· [2023] KEELC 18788 (KLR)

Kirima (Suing on Behalf of the Estate of the Late Gerishon Kamau Kirima Deceased) v Corner Place Investment Limited & 3 others

Environment and Land Court
13 July 2023
LMLucy N. Mbugua
9,692 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a rival land title, confirming that a title document alone does not prove ownership.

What this practically means

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Executive summary

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The Petitioner, administratrix of the estate of Gerishon Kamau Kirima, petitioned claiming that LR 209/11092/16 (registered under the repealed RTA in 1996 following a 1979 allotment by the City Council of Nairobi) was duplicated by a parallel title, Nairobi Block 37/73, created under the repealed RLA and ultimately issued to the 1st Respondent in 2015. She sought declarations that her estate's interest vests in it and that the 1st Respondent's title was unlawful, cancellation of the RLA title, compensation for breach of Articles 10, 40 and 47, and costs. The 1st Respondent claimed to be a bona fide purchaser for value and argued the petition failed the constitutional threshold, offended constitutional avoidance, was time-barred, and that fraud was neither specifically pleaded nor proved. The 2nd-4th Respondents' witnesses confirmed the two parcels are one and the same but could not explain how the RTA interests transitioned to Nicholas Ruto, the first RLA holder. The court held the petition met the Anarita Karimi Njeru threshold and did not offend constitutional avoidance; the claim was not time-barred, the 1st Respondent being estopped from invoking limitation. Applying Munyu Maina and Hubert L. Martin, the court found the Petitioner's root of title plausible while the 1st Respondent could not explain its root; the conversion was fraudulently done as regards the Petitioner's interests, and the 1st Respondent was not a bona fide purchaser. The petition was allowed: declarations of ownership and illegality, cancellation of the RLA title, an injunction, rectification and registration in the estate's name, general damages of Ksh. 5,000,000 against the 2nd-4th Respondents jointly and severally, costs to the Petitioner, and placement of the decree in the parcel file.

Key legal issues

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01

Constitutional threshold and constitutional avoidance

Holding

The Petition met the Anarita Karimi Njeru threshold and did not offend the doctrine of constitutional avoidance

Reasoning

The Petitioner pleaded with precision the Articles infringed (10, 40, 47) and the manner of infringement, and gave a chronology of the dispute. The court held that a constitutional petition may be filed even where another remedy exists, and that the substance went beyond a private fraud claim.

02

Limitation

Holding

The claim was not statute-barred; the 1st Respondent was estopped from invoking limitation

Reasoning

The court held the suit related to violations of fundamental rights going beyond fraud, and that the 1st Respondent, given the litigation history since HCC No. 1065 of 2003, was estopped from invoking the limitation statute.

03

Identity of the two parcels

Holding

LR No. 209/11092/16 and Nairobi Block 37/73 are one and the same parcel

Reasoning

DW2 and DW3 both confirmed the two parcel numbers refer to the same land, and the litigation history showed one parcel on the ground with two claimants under different registration regimes.

p. 12
04

Root of title and breach of constitutional rights

Holding

The Petitioner proved her root of title; the 1st Respondent could not explain its root, and the conversion was fraudulently done, breaching Articles 40, 10 and 47

Reasoning

The Petitioner traced her title to the 1979 allotment and the 1996 registration under the RTA. DW2 could not explain how Nicholas Ruto became lessee under the RLA, and DW3's evidence showed irregularities in the conversion records. The court concluded the conversion was fraudulent as regards the Petitioner's interests and that the 1st Respondent was not a bona fide purchaser.

p. 16

Legal principles established

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  • Where two titles exist over the same land, the court must investigate the root of each title and uphold the one that conforms to procedure without a break in the chain
  • A registered proprietor whose title is under challenge must prove the legality of the acquisition beyond the instrument of title
  • A constitutional petition may be filed even where another remedy exists; a party may pursue the most efficacious remedy

Court orders

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  1. 1.A declaration that the proprietary interest of LR No. 209/11092/16 IR No. 75352 Nairobi City Park Estate also known as Nairobi Block 37/73 vests in the Estate of Gerishon Kamau Kirima
  2. 2.A declaration that the title documents held by the 1st Respondent and issued by the 2nd, 3rd and 4th Respondents over the suit land are illegitimate and unlawful
  3. 3.An order for cancellation of the title documents held by the 1st Respondent and the 3rd and 4th Respondents for parcel Nairobi/Block/37/73, including the Certificate of Lease dated 30.1.2015 and the registration entries in the Green Card
  4. 4.An order restraining the 1st Respondent from interfering with the Petitioner's occupation of the suit property
  5. 5.An order directing the 3rd Respondent to register the suit property into the name of the Estate of Gerishon Kamau Kirima and rectify their records accordingly
  6. 6.General damages of Ksh. 5,000,000 for infringement of the Petitioner's rights, payable jointly and severally by the 2nd-4th Respondents
  7. 7.Respondents jointly and severally condemned to pay the costs of the suit to the Petitioner
  8. 8.A copy of the extracted decree to be placed in the parcel file for LR 37/73 at the Land Registry

Authorities

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Legislation

  • Registration of Titles Act (Cap 281) (Repealed)Sections 40, 44(1), 65(1)
  • Registered Lands Act (Cap 300) (Repealed)General
  • Land Registration ActSections 24(a), 26
  • Constitution of Kenya, 2010Articles 10, 40, 47
  • Limitation of Actions ActLimitation period for fraud (1 year from discovery)

Cases cited (19)

  • Anarita Karimi Njeru v Republic
    [1976-1980] KLR

    Precision required in pleading constitutional violations

  • Ernest C.O. Muga vs. Attorney General
    (2018) eKLR

    Doctrine of constitutional avoidance

  • Speaker of National Assembly Vs. Karume
    [1992] KLR 425

    Where a clear procedure for redress is prescribed it should be strictly followed

  • Anne Wawuda & 3 others v Kenya Railways Corporation & another
    [2015] eKLR

    Cited alongside Karume on prescribed procedures for redress

  • Fred Munialo Maelo v Mathew Wamalwa Wafula & 2 others
    [2020] eKLR

    A constitutional petition may be filed even where another remedy exists

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR

    Challenged proprietor must prove legality of acquisition beyond the title instrument

  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR

    Investigation of competing titles must start at the root of title

  • Chemey Investment Limited vs Attorney General & 2 Others
    [2018] eKLR

    Supports root-of-title investigation

  • Amos Kibata Githeko v Loise Gachiku Kinuthia
    [2021] eKLR

    Court's earlier criticism of purported bona fide purchasers filing multiple suits

  • Rutongot Farm Ltd v Kenya Forest Service & 3 others
    [2018] eKLR

    Compensation for infringement of rights (cited by Petitioner)

  • David Gitua Njau & 9 others v Attorney General
    [2013] eKLR

    Rights-based claims not statute barred (cited by Petitioner)

  • Oriental Commercial Bank Limited of Kenya v Central Bank of Kenya
    [2015] eKLR

    Rights claims and limitation (cited by Petitioner)

  • Wachira Weheire v Attorney General
    [2010] eKLR

    Rights claims and limitation (cited by Petitioner)

  • Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others
    Pet.14a,14vb& 14c of 2014[2014] eKLR

    Constitutional avoidance (cited by 1st Respondent)

  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex Parte Law Society of Kenya
    [2020] eKLR

    Constitutional avoidance (cited by 1st Respondent)

  • Grace Wairimu sorora & another v National Land Commission & 2 others
    [2021] eKLR

    Specific pleading and higher standard of proof in fraud (cited by 1st Respondent)

  • John Wamalwa Wamare v Saboti Lands Dispute Tribunal & 3 others
    [2022] eKLR

    Specificity and proof of damages (cited by 1st Respondent)

  • Mehmood Tariz v Capital Trucks and Cars Ltd & another
    [2013] eKLR

    Cited by 1st Respondent as confirming lawful eviction

  • Ramuka Agencies Limited v Stephen Kamau Kirima
    Nairobi ELC 1458 of 2014

    Similar matter on root of title (cited by Petitioner)

Jurisdiction invoked
Articles 10, 40 and 47 of the Constitution of Kenya, 2010 (Environment and Land Court jurisdiction over land and environment disputes)

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, "Kirima (Suing on Behalf of the Estate of the Late Gerishon Kamau Kirima Deceased) v Corner Place Investment Limited & 3 others", Case Analysis (2023). Environment & Land Petition 45 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18788/eng@2023-07-13

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