Sheikh & another v Mas Constructions Limited & 5 others
The bottom line
#Kenya's Environment and Land Court cancelled a fraudulently obtained title over Nairobi land and awarded the rightful owners Kshs 10 million in damages.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Plaintiffs' Grant IR 94707
The Plaintiffs' Grant was valid, being first in time and traceable to the 1937 acquisition by the deceased's kin
The court found the Plaintiffs' Grant was a renewal of the lease over land issued to their kin in 1937, was first in time, and the mother title Deed File 2605 contained all entries relied upon by the Plaintiffs. The Plaintiffs held the original Deed Plan No 244601 and had been in continuous possession until the 1st Defendant's purported distress for rent.
Validity of the Defendants' Grant IR 147524
The 1st Defendant's Grant was procured through fraud and is null and void ab initio
Both grants carried the same Deed Plan No 244601, of which only the Plaintiffs held the original. The 1st Defendant procured a certified copy of the Deed Plan and the opening of Deed File IR 147524 in August 2013 for land whose title already existed, amounting to fraud in two ways, rendering the parallel grant invalid.
Lawfulness of the distress for rent and the order of October 10, 2014
The distress for rent was unlawful and the order and proceedings in Milimani CM Misc Appln No 972 of 2014 were null and void ab initio
The Plaintiffs and their caretaker were not tenants of the 1st Defendant and no rent was due. The 1st Defendant instructed the 2nd Defendant auctioneer to evict occupants and demolish the house on land it did not validly own, so the distress and the order pursuant to which it was levied were a nullity.
Damages for trespass
General damages of Kshs 10,000,000 assessed against the 1st Defendant despite absence of a valuation report
Having found that the 1st, 3rd and 4th Defendants trespassed on the suit property and demolished the building thereon, the court held the Plaintiffs entitled to damages. Although no valuation report was filed, the court assessed damages at Kshs 10,000,000.
Legal principles established
#- A registered proprietor whose root of title is under challenge must go beyond the title instrument and prove the legality of the acquisition
- Fraud must be specifically pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
- Where two titles exist over the same land, the title first in time and validly procured takes precedence; a title procured by fraud is invalid
Court orders
#- 1.A declaration that the order of October 10, 2014 and proceedings in Milimani CM Misc Appln No 972 of 2014, pursuant to which the 1st and 2nd Defendants levied distress for rent on LR 209/1916/5, is null and void ab initio
- 2.A declaration that Grant number IR 147524 for LR 209/1916/5 dated February 18, 2013, or any such Grant pursuant to which the 1st, 3rd and 4th Defendants claim entitlement to ownership, is null and void ab initio
- 3.The 1st Defendant to pay the Plaintiffs damages for trespass of Kshs 10,000,000
- 4.The 1st, 2nd, 3rd and 4th Defendants restrained from entering or remaining upon LR 209/1916/5 or interfering with the Plaintiffs' occupation of the property
- 5.The 5th Defendant restrained from approving development applications and drawings, issuing permits or authorising demolition or construction works over LR 209/1916/5 at the behest of the 1st, 3rd and 4th Defendants
- 6.The 6th Defendant restrained from registering against the register of LR 209/1916/5 any documents adverse to the Plaintiffs' interests at the behest of the 1st, 3rd and 4th Defendants
- 7.The 1st Defendant to pay the Plaintiffs the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution / ELC Act); rectification sought under Section 80(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh & another v Mas Constructions Limited & 5 others", Case Analysis (2023). Environment & Land Case 1480 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19163/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.