Crysenthum Investments Limited v Nthiga & 3 others (Environment and Land Case 55 of 2021) [2024] KEELC 52 (KLR)
The bottom line
#A Kwale court cancelled a land title obtained by fraud, ruling the older, properly documented title wins when two titles clash.
What this practically means
#Executive summary
#Key legal issues
#Burden and standard of proof of ownership and fraud
The burden lay on the plaintiff under sections 107 and 109 of the Evidence Act to prove ownership and that the 1st defendant's registration was fraudulent; fraud must be proved to a standard slightly above balance of probabilities, which the plaintiff discharged through certified documents and the registrar's concessions.
The court held that he who alleges must prove, citing sections 107 and 109 of the Evidence Act. It found the plaintiff's documents (title deed, official search, green card, consents and transfers) established an unbroken root of title from 1995. The existence of two titles and the absence of any transfer into the 4th defendant established that the 1st defendant's title was acquired through fraud, satisfying the higher standard set in the cited authorities.
Indefeasibility of title under section 26 of the Land Registration Act
A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where acquired illegally, unprocedurally or through a corrupt scheme.
The court quoted section 26 of the Land Registration Act and found the 1st defendant's title impeachable because it was not supported by the parcel file, lacked any transfer showing how the 4th defendant became owner, and was acquired through fraud. Even without fraud, the title was defective due to irregularity and illegality in its registration.
Competing titles - first in time prevails and root of title
Where two titles exist over the same land, the first in time prevails, and the title upheld is the one that conforms to procedure and can trace its root without breaking a chain.
Relying on Wreck Motors Enterprises and Hubert L. Martin, the court found the plaintiff's title, registered in October 1995 and supported by consents, transfers and cancelled titles, predates the 1st defendant's 2014 title and is fully traceable, whereas the 1st defendant's title has no supporting transfer in the parcel file.
Cancellation of a fraudulently acquired title
Having established that the 1st defendant's title was tainted by fraud and irregularity, the court cancelled it and ordered registration of the property in the plaintiff's name.
Invoking the Court of Appeal's holding in Super Nova Properties that only a court of law can cancel a title on the basis of fraud or illegality, the court held that the plaintiff's constitutional right to property under Article 40 entitled it to the declaration, mandatory injunction and cancellation sought, the case having been heard and decided on merit.
Legal principles established
#- There can never be two separate titles over the same parcel of land; where two titles exist, one must be fake and the first in time should prevail.
- Where a title to land is challenged, the holder or registered owner must demonstrate the root of their title.
- Where a court is faced with two titles over the same land, the title to be upheld is that which conformed to procedure and can properly trace its root without breaking a chain.
- The only institution with mandate to cancel a title to land on the basis of fraud or illegality is a court of law.
Court orders
#- 1.A mandatory injunction against the defendants, their agents, servants or employees from selling, alienating, disposing, further charging and/or dealing with Plot No. Kwale/Kidimu/269 to the detriment of the plaintiff
- 2.A declaration that the plaintiff is the owner and proprietor of Plot No. Kwale/Kidimu/269 situated within Shimoni in Kwale County
- 3.Cancellation of the Title Deed in the names of the 1st Defendant
- 4.An order for registration of Plot No. Kwale/Kidimu/269 in the plaintiff's names
- 5.Costs and interest of the suit to the plaintiff, entered against the defendants jointly and severally
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land (Environment and Land Court Act); Article 40 of the Constitution on protection of property rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Crysenthum Investments Limited v Nthiga & 3 others (Environment and Land Case 55 of 2021) [2024] KEELC 52 (KLR)", Case Analysis (2024). Not stated in the judgment (E&L Suit, Environment and Land Court, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/52/eng@2024-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.