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ELCAllowedEnvironment & Land Case 3 of 2020· [2023] KEELC 20613 (KLR)

Mudembei & another v Malembi & another

Environment and Land Court of Kenya
13 October 2023
5,198 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a land title obtained through an oral, undocumented deal, returning the property to the deceased owner's family.

What this practically means

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Executive summary

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The plaintiffs, administratrix and administrator of the estate of William Jedevera Mudembei (d. 25/4/1982), challenged the registration of Kakamega/Mabusi/14 in the name of the 1st Defendant. The deceased had accepted an allotment of plot 14 at Mabusi Settlement Scheme in 1968 and repaid a Settlement Fund Trustee loan until his death. The plaintiffs proved the deceased sold his interest by written agreement dated 17/3/1979 to Charles Machungo for Kshs 80,000, whose relatives occupied the land until evicted by the 1st Defendant in 1998. The 1st Defendant claimed he purchased the land orally in 1982 for Kshs 200,000, later asserting a written agreement that got lost. The court found he lied under oath, noting the transfer was dated 13/7/1982, after the deceased's death, the Land Control Board consent application was thumbprinted rather than signed, no payment evidence existed, and the green card showed a consideration of only Kshs 5,400. Although fraud was not strictly proved absent forensic evidence, the court found the process of acquiring title illegal, involving complicity of Settlement Fund Trust officials who issued a discharge to the 1st Defendant while continuing to demand dues from the deceased. The alleged oral transaction offended section 3(3) of the Law of Contract Act and conferred no interest. Judgment was entered for the plaintiffs: declaration that the registration is illegal, null and void; cancellation of the 1st Defendant's title; registration of the plaintiffs as owners; eviction of the 1st Defendant; a permanent injunction; and joint and several costs against both Defendants. This was a fresh trial following the Court of Appeal's setting aside of the earlier High Court judgment for lack of jurisdiction and remittal to the Environment and Land Court.

Key legal issues

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01

Whether the alleged sale by the deceased to the 1st Defendant was valid

Holding

The alleged transaction was oral, contrary to section 3(3) of the Law of Contract Act, and was null and void; it conferred no interest on the 1st Defendant

Reasoning

The 1st Defendant had no written sale agreement; in earlier proceedings he admitted the agreement was oral, yet in the fresh trial claimed a written agreement got lost. The court found he lied under oath. No evidence of payment of the alleged Kshs 200,000 consideration existed, and the transfer was dated after the deceased's death.

p. 8
02

Whether fraud was proved against the Defendants

Holding

Fraud was not strictly proved as there was no forensic document evidence, but the process of acquiring title was shown to be illegal and tainted by a corrupt scheme involving Settlement Fund Trust officials

Reasoning

The court held that allegations of forgery required expert evidence from a document examiner; the widow's denial carried no evidential weight. However, the anomalies - discharge issued to the 1st Defendant while demand notices continued to the deceased, and the consideration discrepancy in the green card - demonstrated an illegal process and official complicity.

p. 9
03

Whether the deceased sold his interest to Charles Machungo and whether Machungo took possession

Holding

The court found a valid written sale to Machungo for Kshs 80,000, whose possession through relatives was with the deceased's express permission until unlawfully evicted by the 1st Defendant in 1998

Reasoning

The written agreement of 17/3/1979 prepared by an advocate was produced with receipts for the purchase price, loan clearance and legal fees. Machungo's sister and brother-in-law occupied the land on his behalf until the 1st Defendant evicted them after obtaining title through the corrupt scheme.

p. 7
04

Whether the Plaintiffs are the personal representatives of the deceased and whether the deceased was the original allottee

Holding

The Plaintiffs produced a grant of letters of administration and are the personal representatives; the deceased was the original allottee of plot 14 as shown by the certificate of acceptance and letter of allotment

Reasoning

The grant was issued on 21/2/2000 and produced as an exhibit. The certified SFT file and letter of allotment showed the deceased paid a deposit and signed the certificate of acceptance in 1966, establishing original allotment.

p. 6

Legal principles established

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  • A contract for the disposition of an interest in land must be in writing, signed by all parties and attested by a witness; an oral disposition confers no interest
  • Fraud must be specifically pleaded and distinctly proved; it cannot be left to be inferred from facts
  • A party whose title is under challenge bears the burden of showing that the process of acquisition was legal and proper

Court orders

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  1. 1.A declaration that the registration of LR No. Kakamega/Mabusi/14 in the name of the 1st Defendant is illegal, null and void
  2. 2.An order cancelling the title in respect of LR No. Kakamega/Mabusi/14 in the name of the 1st Defendant
  3. 3.An order that the Plaintiffs be registered as owners of LR No. Kakamega/Mabusi/14
  4. 4.An order of eviction of the 1st Defendant and his agents or servants from LR No. Kakamega/Mabusi/14
  5. 5.A permanent injunction restraining the 1st Defendant, his servants or agents from occupying, staying in or interfering with LR No. Kakamega/Mabusi/14
  6. 6.The Defendants shall jointly and severally pay the costs of the suit to the Plaintiffs

Authorities

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Legislation

  • Law of Contract Act (Cap. 23)section 3(3)
  • Evidence Actsection 107
  • Auctioneers Act (Cap. 526)

Cases cited (14)

  • Fahiye & 2 others v Omar & 4 others
    2010 (2) KLR 224

    Contracts for disposition of land must be in writing, signed and witnessed

  • James Muniu Macharia v National Bank of Kenya Ltd
    Civil Appeal No. 365 of 2017 (2019) eKLR

    Standard of proof in civil cases is on a balance of probability

  • Vijay Morjaria v Nansingh Madhusing Darbar & another
    (2000) eKLR

    Fraud must be specifically pleaded and distinctly proved

  • Kinyanjui Kamau v George Kamau
    (2015) eKLR

    Proof of fraud allegations

  • Emfil Ltd v Registrar of Titles Mombasa
    (2014) eKLR

    Proof of fraud allegations

  • Central Bank of Kenya Limited v Trust Bank Ltd & others
    (1996) eKLR

    Proof of fraud allegations

  • Independent Electoral & Boundaries Commission & another v Stephen Mutinda Mula & 3 others
    (2014) eKLR

    Parties are bound by their pleadings; evidence on unpleaded issues goes to no issue

  • Adetoum Oladegi (NIG) v Nigeria Breweries PLC
    SC 91/2002

    Parties must not depart from their pleadings

  • Mrao Limited v First American Bank of Kenya Limited & 2 others
    (2013) eKLR

    Definition of a prima facie case

  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    (2013) eKLR

    Failure to prove particulars of fraud

  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    (2015) eKLR

    Failure to prove particulars of fraud

  • Ndolo v Ndolo
    (2008) I KLR 742

    Standard of proof of fraud

  • Rosemary Wanjiku Muriithi v George Maina Ndinwa
    (2014) eKLR

    Failure to prove particulars of fraud

  • Mary Jerono Mengich v David Kipleting Rugut
    (2013) eKLR

    Failure to prove particulars of fraud

On appeal from
Court of Appeal
Jurisdiction invoked
Environment and Land Court jurisdiction following remittal by the Court of Appeal on 28/11/2019 after setting aside the High Court judgment for lack of jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Mudembei & another v Malembi & another", Case Analysis (2023). Environment & Land Case 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20613/eng@2023-10-13

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