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ELCAllowedEnvironment and Land Appeal E027 of 2022· [2023] KEELC 21628 (KLR)

Gakuu & another (Both Suing as the Registered Trustees of Mbari Ya Kungu) v Macharia & 5 others

Environment and Land Court
15 November 2023
JKJ G Kemei
9,443 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a rival land title, ruling that a register reconstruction cannot legally transfer land ownership.

What this practically means

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Executive summary

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This first appeal challenged the judgment of the Chief Magistrate's Court at Ruiru (CMELC No. 27 of 2020), which had dismissed the Appellants' claim and allowed the 1st Respondent's counterclaim, declaring her the lawful proprietor of Ruiru/Kiu Block 2 (Githunguri)/1206 and ordering reconstruction of the register in her favour. The dispute concerned double registration: the Appellants were registered owners since 29/7/1997, having purchased from Ruth Wachuka Kangethe, while the 1st Respondent obtained registration on 18/9/2018 following a Gazette Notice of 19/5/2017 announcing loss of the Green Card and its reconstruction in her name. Guided by Selle v Associated Motor Boat Co and Hubert L Martin v Margaret J Kamar, the Court re-evaluated the evidence and traced both chains of title to Githunguri Constituency Ranching Company Limited. It held that reconstruction of a register replaces lost entries and cannot convey an interest in land; only a registered proprietor may apply for reconstruction, and neither the Form LRA 14 application, statutory declaration nor indemnity required by Section 33 LRA and Regulation 28 of the 2017 Regulations was exhibited. Official searches of 1/9/2017 and the Registrar's own rectification summons proved the Appellants' register existed, making the Gazette Notice a knowing misrepresentation. The 1st Respondent's chain of title from Wahu Ngigi through Peter Kamau Karera was unproven, and the acreage did not match. Allowing the appeal, the Court set aside the trial judgment and decree, entered judgment for the Appellants as prayed in the Amended Plaint, dismissed the counterclaim, and awarded costs of both the lower court and the appeal to the Appellants.

Key legal issues

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01

Lawfulness of the 1st Respondent's title created through reconstruction of the register

Holding

The title was unlawfully created; the reconstruction did not comply with Section 33 LRA and Regulation 28 of the Land Registration (General) Regulations 2017 and was fraudulent, null and void.

Reasoning

The 1st Respondent was not the registered owner when the Gazette Notice issued, no application in Form LRA 14, statutory declaration in Form LRA 16 or indemnity in Form LRA 17 was exhibited, and the Registrar failed to obtain clarification on parcel status from survey and land administration offices. The Registrar substituted the Appellants' names with the 1st Respondent's, cancelling their title without legal basis.

p. 11
02

Existence of the Appellants' register/Green Card

Holding

On a balance of probability the Appellants' register existed; the Gazette Notice claiming the Green Card was lost was a knowing misrepresentation.

Reasoning

An official search certified by Land Registrar J M Mbobu on 1/9/2017 showed the Appellants as proprietors, and the Registrar's own summons letters of 12/10/2017 and 12/2/2018 referred to rectification of two respective registers. The Registrar offered no explanation for the disappearance of the Appellants' register, so the conclusion is that its creation in favour of the 1st Respondent was fraudulent and illegal.

p. 16
03

Root of title of the 1st Respondent's chain (Wahu Ngigi/Peter Kamau Karera/John Maina Mburu)

Holding

The 1st Respondent's chain of title was unproven; no evidence linked Peter Kamau Karera to Wahu Ngigi, and the acreage in the Share Certificate did not match the parcel claimed.

Reasoning

The Share Certificate indicated a quarter acre while the 1st Respondent claimed 1.25 acres; receipts bore three different names of 'Wahu' with no explanation of their relationship; no Share Certificate, Grant or other evidence connected Peter Kamau Karera to Wahu Ngigi. The land purchased by Mburu could not be shown to be the suit parcel.

p. 15
04

Validity of the Appellants' title and possession

Holding

The Appellants held a better title, having been registered in 1997, conducting searches confirming ownership, and being in possession for over 20 years.

Reasoning

The Appellants produced the title issued to Ruth Wachuka on 2/12/1996, their own title of 1997, official searches of 2012 and 2017 and a Land Control Board consent receipt. Their evidence of long possession through a caretaker was more probable than the 1st Respondent's claim to have acquired vacant land in 2011 yet only appear in 2017.

p. 16
05

Competency of the appeal under Order 9 Rule 9 Civil Procedure Rules

Holding

The appeal was competent; an appeal constitutes fresh proceedings in the appellate court, so Order 9 Rule 9 need not be complied with.

Reasoning

The Respondents argued the appeal was incompetent because the Appellants did not obtain leave or file a consent to change advocates. The Court held that an appeal is fresh proceedings before it, so the provision did not apply.

p. 17

Legal principles established

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  • Where two or more titles exist over the same land, the court must investigate from the root of title, and the title upheld is that which conforms to procedure and traces its root without a break in the chain.
  • Reconstruction of a register is to replace lost or missing entries, not to substitute new entries, and cannot in law convey an interest in land.
  • Only the registered proprietor may apply for reconstruction of a register, with statutory declaration and indemnity in the prescribed forms.
  • Land Registrars have no power to revoke titles; revocation is a preserve of the Courts.

Court orders

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  1. 1.The appeal be allowed; the Judgment and Decree of the Court made on 3rd March 2022 be set aside and replaced and or substituted with Judgment in favour of the Plaintiffs/Appellants as prayed in the Amended Plaint
  2. 2.The Counter Claim be dismissed with costs thereof
  3. 3.Costs of the proceedings both in the lower Court and in this appeal be awarded to the Appellants

Authorities

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Legislation

  • Land Registration ActSection 33
  • Land Registration ActSection 79
  • Land Registration ActSection 80
  • Land Registration ActSection 81(1)
  • Land Registration ActSection 14(b)
  • Land Registration (General) Regulations, 2017Regulation 28
  • Land ActSection 7
  • Law of Actions Act Cap 22 (Limitation of Actions Act)Section 7
  • Registered Land Act Cap 300 (repealed)Section 8(b)
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (8)

  • Katende v Harindar & Co Limited
    (2008) 2 E.A 173

    Bona fide purchaser for value without notice; no evidence linking purchaser to fraud.

  • James Njoroge Gitau v Lucy Chepkurui Kimutai
    (2028) EKLR

    Duty to prove root of title by tendering evidence (cited by Respondents).

  • Esther Ndegi Njiru v Leonard Gatei
    (2014) eKLR

    Proof of root of title (cited by Respondents).

  • Hubert L Martin & 2 Others v Margaret J Kamar & 5 Others
    (2016) eKLR

    Where two titles exist over one land, the court investigates from the root; the title tracing its root without a break is upheld.

  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123

    Duty of a first appellate court to re-evaluate evidence and draw its own conclusions.

  • Lucy Wanjiku Mwangi (Suing as the legal representative of the estate of Benson Mwangi Macharia) v Chief Land Registrar & 2 Others
    [2022] eKLR

    Duty of the Registrar to retain registration documents; exposure to sanctions and indemnity where none are kept.

  • Elias Joseph Waburi Wamunyu v Joseph Mwangi Njoroge
    [2017] eKLR

    Rebuke of land officers; registers and RIMs are sacred documents; disputes should be resolved in court, not by unilateral registrar insertions.

  • Supa Nova Properties Limited & Another v District Land Registrar Mombasa & 2 Others; Kenya Anti-Corruption Commission & 2 Others (Interested Parties)
    [2018] eKLR

    Land Registrars have no power to revoke titles; revocation is a preserve of Courts.

On appeal from
Chief Magistrate's Court at Ruiru (CMELC No. 27 of 2020)
CMELC No. 27 of 2020 – Ruiru
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decree (Environment and Land Court Act)

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, "Gakuu & another (Both Suing as the Registered Trustees of Mbari Ya Kungu) v Macharia & 5 others", Case Analysis (2023). Environment and Land Appeal E027 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21628/eng@2023-11-15

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