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ELCAllowedNot stated in the judgment (E&L Suit, Environment and Land Court, Kwale)· [2024] KEELC 52 (KLR)

Crysenthum Investments Limited v Nthiga & 3 others (Environment and Land Case 55 of 2021) [2024] KEELC 52 (KLR)

Environment and Land Court
22 January 2024
3,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Crysenthum Investments Limited, the registered proprietor of Plot Kwale/Kidimu/269 since October 1995, sued after discovering in 2020 that the plot stood registered in the name of the 1st defendant, Alesilis Njeru Nthiga, who had charged it to Kenya Women Micro Finance Bank for Kshs. 26 million. The plaintiff alleged fraud. The 2nd defendant was removed by consent; the 1st and 4th defendants did not enter appearance after substituted service; the 3rd defendant, the Land Registrar through the Attorney General, denied facilitating fraud. The Land Registrar (DW1) could not trace the green card, confirmed there was no transfer showing how the 4th defendant became owner, and conceded there cannot be two titles over one parcel and that the anomalies suggested fraud. The court framed the issues as whether the plaintiff proved its case to the required standard and whether it was entitled to the orders sought. Applying sections 107 and 109 of the Evidence Act and section 26 of the Land Registration Act, and the authorities on proof of fraud and root of title, the court found the plaintiff had traced its title back to 1995 through consents, transfers and cancelled titles, while the 1st defendant's 2014 title was unsupported by the parcel file and was acquired through fraud; alternatively it was irregular and illegal. Relying on Wreck Motors, Hubert L. Martin and Super Nova Properties, the court entered judgment for the plaintiff against the defendants jointly and severally, issuing a mandatory injunction, declaring the plaintiff the owner, cancelling the 1st defendant's title, ordering registration in the plaintiff's name, and awarding costs and interest. Judgment dated, signed and delivered on 22nd January 2024 by A.E. Dena, J.

Key legal issues

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01

Burden and standard of proof of ownership and fraud

Holding

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.

Reasoning

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.

p. 5
02

Indefeasibility of title under section 26 of the Land Registration Act

Holding

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.

Reasoning

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.

p. 4
03

Competing titles - first in time prevails and root of title

Holding

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.

Reasoning

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.

p. 6
04

Cancellation of a fraudulently acquired title

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 2.A declaration that the plaintiff is the owner and proprietor of Plot No. Kwale/Kidimu/269 situated within Shimoni in Kwale County
  3. 3.Cancellation of the Title Deed in the names of the 1st Defendant
  4. 4.An order for registration of Plot No. Kwale/Kidimu/269 in the plaintiff's names
  5. 5.Costs and interest of the suit to the plaintiff, entered against the defendants jointly and severally

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSection 26
  • Land Registration ActSection 14(1)(b)
  • Registered Land Act (Cap 300, repealed)Section 32
  • Evidence Act (Cap 80)Sections 107 and 109

Cases cited (8)

  • Central Bank of Kenya Limited vs. Trust Bank Ltd & 4 Others
    (1996) eKLR
  • Ratil Patel vs. Lalji Makanji
    EA 1957
  • Vijay Morjaria vs Nan Sighn Darbar & Ano
    (2000) eKLR
  • Munyu Maina vs. Hiram Gathiha Maina
    (2013) eKLR
  • Samuel Odhiambo Oludhe & 2 Others vs. Jubilee Jumbo Hardware Ltd & Ano
    (2018) eKLR
  • Wreck Motors Enterprises vs. The Commissioner of Lands and Others
    Civil Appeal No. 71 of 1997
  • Hubert L. Martin & others vs. Margaret J. Kamar & 5 Others
    (2016) eKLR
  • Super Nova Properties Limited & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties)
    [2018] eKLR, Mombasa Appeal No. 98 of 2016
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

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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, "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.