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ELCAllowedEnvironment & Land Case 77 of 2015· [2023] KEELC 19106 (KLR)

Betty Mukui (Suing as the Administrator of the Estate of Joseph Makori Juma Deceased) & another v Kennedy Osimba & another

Environment and Land Court of Kenya
28 July 2023
AOA. O. Ombwayo
3,217 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land buyer's title, ruling that even innocent purchasers lose protection when a title was obtained fraudulently.

What this practically means

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Executive summary

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The plaintiffs, administratrixes of the estate of Joseph Makori Juma (deceased), sued Kennedy Osimba, the Land Registrar Nakuru and the Attorney General over parcel Njoro/Ngata 1/1381 (New Kiambu), registered in the deceased's name. They alleged that in December 2014 the 1st defendant entered the land, fenced it and deposited building materials, and that the 2nd defendant refused to intervene or issue official searches. They sought a permanent injunction, demolition, removal of materials, eviction, cancellation of any adverse title documents, a declaration of the deceased's ownership, general damages and costs. The 1st defendant claimed he purchased the land in 2011/2012 from Michael Koskei Kurere and was duly registered; the 2nd and 3rd defendants filed a general defence. The Land Registrar testified that the land belonged to the 1st defendant and his wife, but conceded the 2010 search and gazette notice showed the deceased as proprietor and produced no transfer forms, consents or parcel file. The court found the deceased was the first registered owner (1997), that the 2011 gazette notice initiating issuance of a new title was a fraudulent scheme despite the deceased being dead, and that the Registrar's failure to avail the parcel file evidenced manipulation. Applying Section 26(1)(b) of the Land Registration Act and the first-in-time principle, the court held the 1st defendant's title was a product of an illegal and corrupt scheme and unprotected. Judgment was entered for the plaintiffs in terms of the injunction (effective after 120 days), demolition, removal of materials, eviction on 120 days' notice, cancellation of adverse documents, declaration of ownership, general damages of Kshs 100,000 and costs.

Key legal issues

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01

Impeachability of title under Section 26(1)(b) of the Land Registration Act

Holding

The 1st defendant's title was a product of an illegal and corrupt scheme and cannot be protected, notwithstanding his registration

Reasoning

The court found the gazette notice of 29th April 2011 was issued despite the registered proprietor being long deceased, indicating a scheme to defraud. The Land Registrar testified without the parcel file, transfer forms, land control board consent or surrendered titles, evidencing manipulation. Section 26(1)(b) removes indefeasibility protection where title was acquired illegally, unprocedurally or through a corrupt scheme, even against an innocent purchaser.

02

Priority of competing titles

Holding

The plaintiffs' deceased husband's title was first in time and prevails over the 1st defendant's later title

Reasoning

The deceased was registered on 7th August 1997 and the original title deed was produced. The official search of 24th February 2010 and the gazette notice both recognized the deceased as proprietor. Applying the first-in-time principle and the maxim that where two equities are equal the first in time prevails, the plaintiffs' title was upheld.

03

Burden on a purchaser to investigate the root of title

Holding

A purchaser must conduct due diligence beyond an official search, including perusing the whole parcel file and verifying all green card entries

Reasoning

The court observed that corrupt schemes at the Ministry of Lands have become complex, so buyers must verify that transfer forms exist for every entry in the green card and ascertain the historical background of the land. The 1st defendant did not call Michael Kurere Koskei, the alleged seller, nor produce transfer forms, weakening his root of title.

p. 4

Legal principles established

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  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected even in the hands of an innocent purchaser for value
  • Where two titles exist over the same parcel of land, the first in time prevails
  • A registered proprietor whose root of title is under challenge must prove the legality of the acquisition beyond the title instrument

Court orders

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  1. 1.Permanent injunction against the 1st defendant, his assigns, personal representatives, servants and/or agents from entering, conveying, dealing, advertising, trespassing, selling or transferring the suit property, to operate after expiry of 120 days
  2. 2.Order to demolish any constructed structures on Njoro/Ngata 1/1381 within 120 days
  3. 3.Order to collect and/or remove all building materials deposited on Njoro/Ngata 1/1381 within 120 days
  4. 4.Order of eviction against the 1st defendant, his assigns, personal representatives, servants and/or agents upon issuance of a 120 days' notice
  5. 5.Order to the 2nd defendant to cancel any title documents issued adverse to registration of Njoro/Ngata 1/1381 in the name of Joseph Makori Juma (deceased)
  6. 6.Declaration that Joseph Makori Juma (deceased) is the registered proprietor of Njoro/Ngata 1/1381 and the land is property of his estate
  7. 7.General damages of Kshs 100,000
  8. 8.Costs of the suit from the time of filing at the current court rates

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40(1) and 40(6)
  • Land Registration Act No 6 of 2012Section 26(1)
  • Land Registration Act No 6 of 2012Section 80(1)

Cases cited (5)

  • Elijah Makeri Nyangw’ara v Stephen Mungai Njuguna & another
    [2013] eKLR

    Section 26(1)(b) removes protection from an innocent title holder where title was obtained illegally, unprocedurally or through a corrupt scheme

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

    Where two or more titles exist over the same land, the court must investigate from the root and uphold the title that conforms to procedure

  • Wreck Motors Enterprises v The Commissioner of Lands and others
    Civil Appeal No 71 of 1997

    Where there are two competing titles, the one registered earlier takes priority

  • Gitwany Investment ltd v Tajmal Ltd & 3 others
    [2006] eKLR

    Where two titles are issued over the same parcel, the first in time prevails absent fraud

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR

    A registered proprietor whose root of title is challenged must prove legality of acquisition beyond the title instrument

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution, as the court seized of Environment & Land Case 77 of 2015)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Betty Mukui (Suing as the Administrator of the Estate of Joseph Makori Juma Deceased) & another v Kennedy Osimba & another", Case Analysis (2023). Environment & Land Case 77 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19106/eng@2023-07-28

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