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ELCPartially AllowedEnvironment & Land Case 40 of 2015· [2023] KEELC 21555 (KLR)

Samson (Suing as the legal representative of the Estate of Samson Kabiri Kabitu) v Co-operative Bank of Kenya Ltd & 2 others

Environment and Land Court
15 November 2023
5,478 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a fraudulently obtained land title and voided a bank's charge because the bank failed to do proper due diligence.

What this practically means

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Executive summary

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The plaintiff, as legal representative of the estate of Samson Kabiri Kabitu, sued Co-operative Bank of Kenya Ltd, her son Michael Kabutu Samson (later substituted upon death), and Charles Kimani Wangui. She sought a declaration that the charge over Bahati Kabatini Block 1/2679 was illegal and void ab initio, cancellation of the title fraudulently registered in Michael's name, a permanent injunction, and general damages. Her case was that Michael stole the original title in 2009, transferred the land to himself, and charged it to secure loans of Kshs 2,000,000 advanced to Wangui, who defaulted, prompting the bank to exercise its statutory power of sale. Michael pleaded guilty to stealing the title in CMCR No. 63 of 2013 and was jailed for six years. The bank defended that it conducted due diligence, including a registry search and valuation, before registering the charges. The 2nd and 3rd defendants did not file defences. The court found the title was stolen and fraudulently obtained; the bank's due diligence extended only to a registry search despite a valuation report noting dwellings occupied by others; no land control board consent was produced, rendering the agricultural land transactions void under Section 6 of the Land Control Act; and Michael, lacking a grant, was an intermeddler under Section 45 of the Law of Succession Act. The suit succeeded except for general damages, which were declined as unproved. The charge and further charge were declared void ab initio, the title cancelled, the Land Registrar ordered to reinstate the title in the deceased's name, a permanent injunction issued, and costs awarded to the plaintiff against the defendants jointly and severally.

Key legal issues

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01

Whether the charge registered against the suit title is illegal and void ab initio

Holding

Yes - the charge was executed by an intermeddler on a fraudulently obtained title, without land control board consent, and the bank failed to conduct adequate due diligence.

Reasoning

The court found the title was stolen and fraudulently transferred to Michael Kabutu Samson, who pleaded guilty to theft. The bank's due diligence was limited to a registry search; its valuation report noted dwellings occupied by persons other than the registered owner but no interviews were recorded. No land control board consent was produced, rendering the agricultural land transactions void under Section 6 of the Land Control Act. The charge was therefore executed by an intermeddler on an illegally obtained title.

p. 9
02

Whether the title in the name of Michael Kabutu Samson ought to be cancelled

Holding

Yes - the title was fraudulently acquired and falls within the Section 26 LRA exceptions to indefeasibility.

Reasoning

The court held that although the title was prima facie evidence of ownership, Section 26 of the Land Registration Act permits challenge on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The 2nd and 3rd defendants did not file defences and were deemed to have admitted the fraud allegations; the thief's guilty plea and conviction corroborated the fraud.

p. 7
03

Whether the defendants ought to be injuncted from interfering with the suit land

Holding

Yes - a permanent injunction issued restraining the defendants from dealing with the suit property.

Reasoning

Having found the charge void ab initio and the title fraudulently obtained, the court granted the permanent injunction sought, restraining the defendants jointly and severally from trespassing on, selling, alienating or otherwise dealing with the suit property.

p. 9
04

Whether general damages ought to be awarded

Holding

No - general damages were declined as none were proved.

Reasoning

Although the plaintiff sought general damages, the court found no proof of damages and declined the award.

p. 9

Legal principles established

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  • A chargee must conduct due diligence beyond a registry search, including visiting the property and interviewing occupants, before taking security; failure to do so may deny it clean hands.
  • Transactions affecting agricultural land without land control board consent are void under Section 6 of the Land Control Act, and the burden lies on the chargee to prove such consent was obtained.
  • A person dealing with a deceased person's land without a confirmed grant is an intermeddler under Section 45 of the Law of Succession Act, and a charge executed by such an intermeddler cannot support a statutory power of sale.

Court orders

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  1. 1.A declaration that the charge and further charge dated 29/6/2011 and 14/11/2011 registered against title no. Bahati Kabatini Block 1/2679 as entries nos 1 and 3 are illegal and void ab initio
  2. 2.Cancellation of the title deed for parcel number Bahati Kabatini Block 1/2679 in the name of Michael Kabutu Samson issued on 31/3/2011
  3. 3.The Land Registrar Nakuru shall reinstate the title to parcel number Bahati Kabatini Block 1/2679 into the name of Samson Kabiri Kabitu
  4. 4.A permanent injunction restraining the defendants jointly and severally from trespassing on, selling, alienating or in any other way disposing of or adversely dealing with the suit property
  5. 5.General damages declined as none were proved
  6. 6.The defendants shall jointly and severally bear the costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26(1), 26(2)
  • Land Control ActSection 6
  • Evidence ActSection 107, Section 109
  • Law of Succession ActSection 45
  • Land ActSection 90(3)
  • Constitution of KenyaArticle 40

Cases cited (11)

  • Monica Achieng Akumu & 3 Others vs Dishon Omindi Nyamondo & 2 Others
    [2013] eKLR
  • Alice Wanjiru Thika & others vs Joseph Gichono Mwangi & Others
    Embu High Court Misc. Application No. 84 of 2007
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    [2015] eKLR
  • Evanson Wambugu Gachugi vs Simon Wainaina Gatwiki & 2 Others
    [2014] eKLR
  • Alice Chemutai Too vs Nickson Kipkurui & 2 Others
    [2015] eKLR
  • Charles Karathe Kiarie & 2 Others vs Administrators of the Estate of John Wallace Mathare (deceased) & 5 Others
    [2013] eKLR
  • David Peterson Kiengo & others vs Kariuki Thuo
    [2012] eKLR
  • Utalii Transport Company Limited & 3 Others v NIC Bank Limited & another
    [2014] eKLR
  • Benjoh Amalgamated Limited & another vs Kenya Commercial Bank Limited
    [2014] eKLR
  • Andrew Shimbiro v Sammy Talam
    [2021] eKLR
  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    NYR CA Appeal No. 342 of 2010 [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)

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, "Samson (Suing as the legal representative of the Estate of Samson Kabiri Kabitu) v Co-operative Bank of Kenya Ltd & 2 others", Case Analysis (2023). Environment & Land Case 40 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21555/eng@2023-11-15

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