Salim v Co -operative Bank of Kenya Ltd & 2 others; Co-operative Bank of Kenya (Plaintiff); Mage & another (Defendant) (Environment & Land Case 193 of 2021) [2024] KEELC 852 (KLR)
The bottom line
#A Kilifi landowner won KES 13 million after a bank used a forged title to charge his land without his knowledge or signature.
What this practically means
#Executive summary
#Key legal issues
#Whether the charge registered over the suit property was fraudulent and void
The charge dated 24th July 2015 was wrongful, unlawful, fraudulent, illegal and void; the Plaintiff never signed the letter of offer or charge, held the original title (serial 717116) while a parallel forged title (serial 932918) was used to register the charge
The court found the title deed used to register the charge bore a different serial number from the Plaintiff's original title and the green card, and the signature on the LCB application differed from the Plaintiff's. The bank's sole witness gave hearsay evidence and conceded the documents differed. The Plaintiff was not privy to the contract; the doctrine of privity and Section 3(3) of the Law of Contract Act precluded enforcing the charge against him.
Standard of proof applicable to allegations of fraud
Fraud must be specifically pleaded and strictly proved to a standard above balance of probability but below beyond reasonable doubt
The court adopted the settled position from Vijay Morjaria, Kagina v Kagina and Kinyanjui Kamau v George Kamau Njoroge, citing Ndolo v Ndolo, that a serious charge of forgery or fraud requires a higher standard than ordinary civil cases. Here the evidence of forgery was unchallenged as the affected parties did not participate in the trial.
Whether the ELC could entertain the bank's Counter Claim
The Counter Claim was struck out for lack of jurisdiction
Applying the predominant purpose test and Co-operative Bank of Kenya v Patrick Kangethe Njuguna, the court held that the counterclaim was essentially for recovery of a loan debt and interest - a commercial matter within the High Court's unlimited civil jurisdiction under Article 165(3), not a dispute relating to the use, occupation or title to land under Article 162(2)(b) and Section 13 of the ELC Act.
Whether the Plaintiff was entitled to damages for unlawful conversion
General damages of Kshs. 6,000,000 awarded for unlawful conversion, plus exemplary and aggravated damages of Kshs. 7,000,000 against the 1st and 3rd Defendants
The court found that charging the Plaintiff's property without his knowledge and through fraud amounted to unlawful conversion. Damages in conversion are compensatory, measured by the value of the property. Exemplary damages were warranted given the bank's cavalier conduct and the Land Registrars' misfeasance in public office in registering a charge on a forged title.
Costs of the suit and counterclaim
Plaintiff awarded costs of the suit against all three Defendants jointly and severally; no costs on the Counter Claim
Applying Section 27(1) of the Civil Procedure Act, costs follow the event unless the court for good reason orders otherwise. Having proved his claim, the Plaintiff was entitled to costs from the Defendants. As the Counter Claim was struck out, no costs were awarded on it.
Legal principles established
#- Allegations of fraud must be specifically pleaded and strictly proved to a standard above the balance of probability but not beyond reasonable doubt
- The ELC has no jurisdiction over counterclaims whose predominant purpose is recovery of monies; such claims belong to the High Court under Article 165(3)
- Registration under Sections 24 and 25 of the Land Registration Act vests absolute ownership, and Section 26(1) confers indefeasibility of title
- A charge created over land through a forged title and without the owner's participation is void and must be cancelled
Court orders
#- 1.Judgment entered in favour of the Plaintiff against the 1st, 2nd & 3rd Defendants jointly and severally as pleaded in the Plaint dated 21st September, 2021
- 2.Declaration that the Plaintiff is the absolute, indefeasible and registered owner of Land Reference No. Kilifi/Mtwapa/2258
- 3.Declaration that the Charge dated 24th July 2015 registered over Land Reference No. Kilifi/Mtwapa/2258 by the 1st Defendant was wrongful, unlawful, fraudulent, illegal and thus void
- 4.Order directing the Registrar of Lands, Kilifi to cancel and revoke the entry of the Charge on the Plaintiff's register for parcel Kilifi/Mtwapa/2258
- 5.Permanent injunction restraining the 1st and 2nd Defendants from advertising, offering, selling by auction or private treaty, disposing of, leasing, further charging or interfering with the suit property
- 6.General damages of Kshs. 6,000,000 for unlawful conversion payable by the 1st Defendant
- 7.Exemplary and aggravated damages (acts of misfeasance in public office) of Kshs. 7,000,000 payable by the 1st and 3rd Defendants (specifically the two Land Registrars, Mr. M. S. Chinyaka and Mr. S. K. Gatuiri) jointly and severally
- 8.Costs of the suit to the Plaintiff, payable by the 1st, 2nd and 3rd Defendants jointly and severally
- 9.No award of costs for the Counter Claim by the 1st Defendant
- 10.Interest on the damages and costs at court rates from the date of filing of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim v Co -operative Bank of Kenya Ltd & 2 others; Co-operative Bank of Kenya (Plaintiff); Mage & another (Defendant) (Environment & Land Case 193 of 2021) [2024] KEELC 852 (KLR)", Case Analysis (2024). Environment and Land Court Suit (Plaint dated 20th September, 2021; case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/852/eng@2024-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.