Kipkemboi v Kemei & another; Tororey (Applicant) (Environment & Land Case 137 of 2021) [2024] KEELC 395 (KLR)
The bottom line
#The Environment and Land Court dismissed a land buyer's attempt to undo orders cancelling a fraud-based title, confirming that no good title flows from a fraudulent acquisition.
What this practically means
#Executive summary
#Key legal issues
#Whether the application premised on Section 9(3)(f) of the Environment and Land Court Act and review principles is competent and merited
The application fails: the cited statutory provision is non-existent, no review grounds under Order 45 Rule 1 were cited or proved, and joinder is futile since the suit was dismissed
The application cited a non-existent provision (Section 9(3)(f) of the ELC Act) and did not plead the Order 45 Rule 1 grounds of discovery of new and important matter, mistake or error apparent on the face of the record. The court held that a review can only be granted on those statutory grounds, none of which were demonstrated. Further, joinder was pointless as the underlying Originating Summons had been dismissed and nothing remained. The application was therefore dismissed.
Whether an innocent purchaser for value can acquire good title derived from a fraudulently acquired title
No; where the root of title is fraudulent, no valid title passes to subsequent purchasers, and the purchaser cannot rely on such title
Relying on Court of Appeal authority (Munyu Maina, Mwangi James Njehia, Arthi Highway Developers), the court held that a registered proprietor whose root of title is challenged must prove legality of acquisition beyond the title instrument. Since the consent that gave rise to the plaintiff's registration was fraudulent and void ab initio, the plaintiff had no title to pass to the applicant, whose title was therefore rooted in a fraudulent and void transaction.
The nature of the orders of 24/10/2022 sought to be reviewed
There was no consent order made on 24/10/2022; the orders were made under the court's inherent powers pursuant to a DCI report confirming the law firms involved were non-existent and the suit fraudulent
The court clarified that the orders of 24/10/2022 were not a consent order but orders made under inherent powers after a DCI report dated 15/7/2022 confirmed that the law firms that filed the suit and executed the 2020 consent were non-existent, hence fraudulent. The suit was also dismissed for want of an affidavit showing cause at the Notice to Show Cause.
Legal principles established
#- Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of how the title was acquired, beyond the instrument of title itself
- A person who acquires title derived from a fraudulent transaction cannot rely on that title; no valid title passes from a fraudulent acquisition to subsequent purchasers
- An application for review can only be granted on the grounds provided under Order 45 Rule 1 of the Civil Procedure Rules
Court orders
#- 1.The Amended Notice of Motion dated 18/10/2023 is dismissed
- 2.The orders issued on 24/10/2022 are to remain in force
- 3.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Environment and Land Court Act (application premised on Section 9(3)(f) of the Environment and Land Court Act, cited by the applicant); the court acted under its inherent powers
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkemboi v Kemei & another; Tororey (Applicant) (Environment & Land Case 137 of 2021) [2024] KEELC 395 (KLR)", Case Analysis (2024). ELC No. 9 of 2019 (originally ELD) - Amended Notice of Motion dated 18/10/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/395/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.