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ELCDismissedEnvironment and Land Appeal E073 of 2021· [2023] KEELC 20867 (KLR)

Akoth & another v Oloo & 2 others

Environment and Land Court
19 October 2023
10,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a title deed alone proves nothing if the land sale behind it broke the law.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kisumu against the judgment of Hon. S.N. Telewa SRM in Kisumu CMC ELC No. 130 of 2018, in which the 1st Respondent, as administrator of the estate of Peres Auma Oloo, had obtained a declaration that the transfers of Kisumu/Kogony/3213 to the Appellants were fraudulent, null and void, rectification of the register, eviction of the Appellants, mesne profits of Kshs. 100,000/- and costs. The Appellants advanced 24 grounds, condensed into six issues: validity of the sale to the 1st Appellant, lawfulness of the transfer, proof of fraud, the 2nd Appellant's bona fide purchaser status, Land Control Board consent, and the validity of the eviction orders. Okong'o J re-evaluated the evidence as required on a first appeal. He found the sale agreement produced by the 1st Appellant was not the agreement signed in the deceased's house, being full of uncountersigned alterations; that no instrument of transfer, Land Control Board consent or stamp duty records existed, as confirmed by the Land Registrar (DW1); and that the evidential burden having shifted, the 1st Appellant failed to prove lawful acquisition. Fraud was held proved. The 2nd Appellant failed as a bona fide purchaser for want of a sale agreement, proof of consideration and due diligence, and the transfer to him breached lis pendens, a null title passing nothing. The lower court's orders, including mesne profits and costs, were held properly made. The appeal was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Duty of a first appellate court

Holding

The court must re-evaluate the evidence and draw its own conclusions while bearing in mind it did not see or hear the witnesses, and will not interfere with findings of fact unless based on no evidence, misapprehension of evidence or wrong principles.

Reasoning

Relying on Verani v Phoenix of East Africa Assurance and Selle v Associated Motor Boat Co., the court restated the classic first-appeal duty, tempered by the absence of the advantage enjoyed by the trial court, citing Peter v Sunday Post Ltd and Makube v Nyamuro on non-interference with findings of fact.

02

Burden of proof and shifting evidential burden

Holding

The legal burden of proving fraud remained on the 1st Respondent, but the evidence she adduced shifted the evidential burden to the Appellants to prove lawful acquisition; the 1st Appellant failed to discharge it.

Reasoning

Citing Kurshed Begum Mirza v Jackson Kaibunga and the Supreme Court in Raila Amolo Odinga v IEBC, the court distinguished the static legal burden from the shifting evidential burden. The 1st Respondent's evidence of no transfer instrument, no consent and no stamp duty required rebuttal, which the 1st Appellant did not provide.

p. 9
03

Lawfulness of the transfer from the deceased to the 1st Appellant

Holding

The transfer was irregular, unlawful, null and void: no instrument of transfer, no Land Control Board consent, no stamp duty records, and the produced sale agreement was full of uncountersigned alterations and was not the agreement actually signed.

Reasoning

The Land Registrar (DW1) confirmed no consent, no transfer documents, no valuation and no stamp duty records existed. The agreement produced contained alterations not countersigned and terms contradicting the 1st Appellant's own evidence on payment. The court found the produced agreement was not the one signed in the deceased's house.

p. 11
04

Fraud

Holding

Fraud was specifically pleaded and proved against the 1st Appellant; failure to show how the property was transferred was itself clear evidence of fraudulent acquisition.

Reasoning

Applying Vijay Morjaria v Nansingh Madhusingh Darbar on the pleading and proof of fraud, the court held the 1st Respondent pleaded fraud. Given the absence of a transfer instrument and consent, the registered documents could only have been forged or procured by misrepresentation.

05

Bona fide purchaser for value without notice

Holding

The 2nd Appellant was not a bona fide purchaser: no sale agreement sighted, no evidence of payment of consideration, no due diligence (search conducted over a year before the transaction), and the transfer breached lis pendens; in any event a null title passes nothing.

Reasoning

The court applied Katende v Haridar requirements via Mwangi James Njehia, Chemey Investment Ltd v A.G and Flemish Investments Ltd on due diligence, and Macfoy v United Africa Co. on nullities. The pending Kisumu ELC No. 350 of 2014 suit attracted the lis pendens doctrine per Bernadatte Wangare Muriu and Emmanuel Ngade Nyoka.

p. 14
06

Validity of the lower court orders (eviction and mesne profits)

Holding

The declaration, rectification, eviction and mesne profits orders were properly made; the Appellants, holding no valid titles, were trespassers, and the one-time Kshs. 100,000/- mesne profits award was reasonable and fair.

Reasoning

Applying Attorney General v Halal Meat Products Ltd and Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah on mesne profits as compensation for wrongful occupation, the court held the estate was entitled to compensation and that costs follow the event.

p. 17

Legal principles established

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  • Land registration is a process, not an event; a title deed and register entry alone do not prove the process was lawful
  • A registered proprietor whose root of title is challenged must prove the legality of acquisition beyond the title instrument
  • A title founded on a nullity confers no interest on a subsequent transferee
  • In the absence of Land Control Board consent, a controlled-land transaction is a nullity under the Land Control Act
  • A purchaser of property pendente lite is bound by the judgment in the pending suit as if he had notice

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st Respondent
  2. 2.The judgment and decree of the lower court (declaration that the transfers were fraudulent, null and void; rectification of the register and restoration of the property to the name of the deceased; eviction of the Appellants; mesne profits of Kshs. 100,000/-; costs of the suit) stand

Authorities

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Legislation

  • Land Control ActChapter 302 Laws of Kenya
  • Land Registration ActSections 9 and 14 (referred to in grounds of appeal)
  • Land ActSection 35 (referred to in grounds of appeal)
  • Evidence ActSections 107 and 112
  • Civil Procedure RulesOrder 42 Rule 4
  • Transfer of Property Act (India)Section 52

Cases cited (25)

  • Verani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd
    [2004] 2 KLR 269

    Duty of the first appellate court to re-evaluate evidence

  • Selle v. Associated Motor Boat Co. Ltd.
    [1968] E.A 123

    Duty of the first appellate court

  • Peter v. Sunday Post Ltd.
    [1958] E.A 424

    Circumstances in which an appellate court interferes with findings of fact

  • Makube v. Nyamuro
    [1983] KLR 403

    Non-interference with trial court findings of fact

  • Kurshed Begum Mirza v. Jackson Kaibunga
    [2017] eKLR

    Legal burden of proof under section 107 of the Evidence Act

  • Raila Amolo Odinga & Another v. IEBC & 2 Others
    [2017] eKLR (Presidential Election Petition No. 1 of 2017)

    Shifting evidential burden of proof

  • Munyu Maina v. Hiram Gathiha Maina
    [2013] eKLR

    Registered proprietor must prove legality of acquisition beyond the title instrument

  • George Mbiti Kiebia & Another v. Isaya Theuri M'lintari & Another
    [2014] eKLR

    Burden under section 112 of the Evidence Act for facts within a party's knowledge

  • Vijay Morjaria v. Nansingh Madhusingh Darbar & another
    [2000] eKLR

    Fraud must be specifically pleaded and distinctly proved

  • Mwangi James Njehia v. Janetta Wanjiku Mwangi & another
    [2021] eKLR

    Requirements of a bona fide purchaser citing Katende v Haridar

  • Katende v. Haridar & Company Ltd
    (2008) 2 EA 173

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

  • Godfrey Githinji Kamiri v Attorney General & 4 others
    [2019] eKLR

    Due diligence expected of a purchaser citing Chemey Investment

  • Chemey Investment Ltd. v A.G & 2 Others
    [2018] eKLR

    No innocent purchaser without inquiry where property circumstances raise alarm

  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others

    Careless investor metaphor on purchase without inquiry

  • Flemish Investments Ltd vs Town council of Mariakani
    CA No. 30 of 2015

    Due diligence: inspection of property and occupation

  • Macfoy v. United Africa Co. Ltd.
    (1961) 3 All E.R 1169

    An act which is void is a nullity; you cannot put something on nothing

  • Wambui v. Mwangi & 3 others
    Civil Appeal 465 of 2019, [2021] KECA 144 (KLR)

    Title founded on nullity is itself null and void

  • Bernadatte Wangare Muriu v. National Social Security Fund Board of Trustees & 2 others
    [2012] eKLR

    Doctrine of lis pendens citing Fredrick Joses Kinyua v G.N. Baird

  • Fredrick Joses Kinyua and Peter Kiplangat Koech v G.N. Baird
    Nairobi HCCC No. 4819 of 1989 (consolidated with HCCC No. 6587 of 1991)

    Lis pendens as substantive law overriding section 23 of the RTA

  • Margaret Wairimu Warima v. Phylis Wanjiru Thairu & 2 others
    [2017] eKLR

    Common law doctrine of lis pendens citing Bellamy v Sabine

  • Bellamy vs. Sabine
    [1857] 1 De J 566

    Rationale of the lis pendens doctrine

  • Emmanuel Ngade Nyoka v. Kitheka Mutisya Ngata
    [2017] eKLR

    Purchaser pendente lite bound by the judgment as if with notice

  • Kawaljeet Singh Rekhi v. Peter Wainaina Kamau & 2 others
    MBSA Civil Appeal No. 21 of 2016 [2016] eKLR

    Lis pendens bars dealing with property under litigation

  • Attorney General v. Halal Meat Products Limited
    [2016] eKLR

    Mesne profits as damages for wrongful occupation

  • Rajan Shah T/A Rajan S. Shah & Partners v. Bipin P. Shah
    [2016] eKLR

    Wrongful possession as the essence of a claim for mesne profits

On appeal from
Chief Magistrate's Court at Kisumu
Kisumu CMC ELC No. 130 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Environment and Land Court Act (appeal from Kisumu CMC ELC No. 130 of 2018)

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, "Akoth & another v Oloo & 2 others", Case Analysis (2023). Environment and Land Appeal E073 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20867/eng@2023-10-19

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