Togom v Ngeny & another
The bottom line
#The Environment and Land Court cancelled a landowner's title as fraudulent, confirming that two competing titles to one Kenyan parcel cannot both be genuine.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants lawfully purchased the suit land from the registered owner
The Defendants proved on a balance of probabilities that Marta C. Kemei, the registered owner, sold them the land in 2000, obtained land control consents and signed mutation forms in their favour
The court analyzed the sale agreements dated 17/02/2000 and 01/09/2000, the land control board consents, the mutation form, the certificate of official search and the original title held by the Defendants, concluding the vendor lawfully sold and transferred the land to them.
Whether the Plaintiff committed fraud in registering the land in her name
Fraud was proved: the Plaintiff obtained registration without any land control consent application or surrender of the original title, which remained with the Defendants
The court found there was no evidence of how the Plaintiff obtained registration without a land control board application or surrender of the original title for cancellation. The original title remained in the Defendants' possession, and the vendor had already completed the transfer process to the Defendants, demonstrating fraud on the Plaintiff's part.
Whether the Plaintiff's title should be cancelled
The title could not stand once fraud was established; it was ordered cancelled
Having found fraud, the court held that a fraudulently acquired title is indefensible and must be cancelled. The court went further to order fresh registration of the Defendants as proprietors of their respective portions and rectification of the register by the Land Registrar.
Legal principles established
#- There cannot be two titles to the same parcel of land; where two titles exist, one must be fraudulent
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.A declaration that the Plaintiff's registration as owner of land parcel No. Kaplamai/Kachibora Block 3/Sosiot/2 was obtained by fraud, unlawful, null and void
- 2.Cancellation forthwith of the registration of the Plaintiff as proprietor of the suit land
- 3.Registration of William K. Ngeny and Gideon Tirop Kendagor as proprietors of 6.7 acres and 3 acres respectively upon presentation of transfers signed by the Deputy Registrar, with the Land Registrar for Trans Nzoia County directed to rectify the register
- 4.A permanent injunction restraining the Plaintiff, her agents, servants and persons claiming through her from entering, trespassing, charging, selling, transferring or dealing with the Defendants' quiet possession of the titles to be subdivided from the suit land
- 5.The Defendants to have the costs of the Counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land ownership, title cancellation and trespass (Article 162(2)(b) context; not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Togom v Ngeny & another", Case Analysis (2023). Environment & Land Case 31 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21103/eng@2023-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.