Samson (Suing as the legal representative of the Estate of Samson Kabiri Kabitu) v Co-operative Bank of Kenya Ltd & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the charge registered against the suit title is illegal and void ab initio
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.
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.
Whether the title in the name of Michael Kabutu Samson ought to be cancelled
Yes - the title was fraudulently acquired and falls within the Section 26 LRA exceptions to indefeasibility.
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.
Whether the defendants ought to be injuncted from interfering with the suit land
Yes - a permanent injunction issued restraining the defendants from dealing with the suit property.
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.
Whether general damages ought to be awarded
No - general damages were declined as none were proved.
Although the plaintiff sought general damages, the court found no proof of damages and declined the award.
Legal principles established
#- 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
#- 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.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.The Land Registrar Nakuru shall reinstate the title to parcel number Bahati Kabatini Block 1/2679 into the name of Samson Kabiri Kabitu
- 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.General damages declined as none were proved
- 6.The defendants shall jointly and severally bear the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.