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ELCPartially AllowedELC Case (Nyamira) - Plaint dated 1/4/2022· [2024] KEELC 1075 (KLR)

Ngare v Ogamba (Environment & Land Case E001 of 2022) [2024] KEELC 1075 (KLR)

Environment and Land Court
15 February 2024
MKMugo Kamau
4,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court found a family land exchange was reversed unfairly and ordered an estate to give back 8 acres to the brother who had originally surrendered them.

What this practically means

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Executive summary

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The Plaintiff, widow and legal representative (ad litem) of the late Stephen Ngare Ogamba, sued the Defendant, her late husband's brother, over Matutu Settlement Scheme/641 measuring about 24 Acres and registered in the Deceased's name but subject to a charge of Kshs 2,000,000 to the Co-operative Bank of Kenya. She sought declarations that the Defendant had no proprietary rights, an injunction, and costs, alleging the Defendant's agents destroyed maize worth Kshs 177,300 on 25/1/2022. The Defendant denied the claim, set up a counterclaim asserting an ancestral entitlement of 8 Acres and a 2002 verbal exchange whereby he received two other parcels from the Deceased in return for his 8 Acres in 641, which exchange was later rescinded when the family objected; the Defendant returned the two parcels but the Deceased, who had charged the suit land and sold the exchanged parcels to third parties, failed to restore the 8 Acres. He claimed a share by occupation of over 12 years. The court heard the parties, family witnesses, and Land Registrars for Kisii and Nyamira, and visited the locus in quo. It found the exchange existed and was rescinded, and that the registrations over the three parcels were fraudulent acts orchestrated by the Deceased with lands office connivance. Dismissing the Plaintiff's suit entirely, the court allowed the counterclaim, ordering the Bank to discharge the parcel so it could be sub-divided 2:1, with the Defendant registered absolute owner of the 8 Acres he occupies, and the estate taking the 16 Acres with the permanent house. The Bank may charge the Deceased's portion. The Defendant received the costs of both the suit and the counterclaim.

Key legal issues

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01

Validity and rescission of the exchange agreement between the brothers

Holding

A verbal exchange agreement existed and took place in 2002, but family objections led to a rescission whereby the Defendant re-transferred the two parcels yet the Deceased failed to reciprocate; the Defendant therefore retained an entitlement to his 8 Acres

Reasoning

The court found on the oral and documentary evidence, including the Land Registrars' testimony, that the exchange of the Defendant's 8 ancestral Acres for West Kitutu/Mwakibagendi/1638 and Wanjare/Bogiakumu/1908 occurred in 2002. The rescission was effected by the Defendant returning the two parcels, but the Deceased, having charged the suit land to the Bank and sold the two parcels to third parties, never honoured his side. The court held the registrations over the three parcels were fraudulent acts of the Deceased in connivance with lands office staff.

p. 7
02

Effect of the subsisting charge over the suit land

Holding

The charge in favour of the Co-operative Bank of Kenya, an interested party not heard, could not simply be overridden; the court structured relief so the Bank discharges the land to enable sub-division and may thereafter charge the Deceased's portion

Reasoning

The suit land had been charged to secure Kshs 2,000,000 with nothing repaid for about 20 years. The court recognized the Bank's interest and that an order transferring 8 Acres to the Defendant could not be made without the Bank being heard. It therefore crafted orders compelling discharge of the entire parcel, sub-division in a 2:1 ratio, and permitting the Bank to charge the Deceased's 16-Acre portion or other collaterals of the estate.

p. 8
03

Integrity of the land register and backdated sub-divisions

Holding

The purported sub-division of Matutu Settlement Scheme/641 into 701 and 702 was irregular, as titles were allegedly issued before registration of the mutation and while a caution and charge subsisted

Reasoning

The Land Registrar Nyamira testified that Matutu Settlement Scheme/641 was never closed yet Green Cards for 701 and 702 existed; titles appeared issued before the mutation was registered, which could not have happened given the caution and charge. The court accepted this supported a finding of fraudulent manipulation of the register by the Deceased with lands office connivance.

p. 6

Legal principles established

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  • A party who has been deceived and defrauded in a land transaction is not without remedy, and equity will restore entitlements where the counterparty has themselves repudiated or subverted the bargain

Court orders

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  1. 1.The Plaintiff's suit and prayers in the Plaint dated 1/4/2022 wholly dismissed with costs to the Defendant
  2. 2.The Defendant's Counter-claim dated 13/6/2022 allowed in terms of prayers (a) and (b), prayer (a) restricted to the 8 Acres he has been occupying
  3. 3.The Co-operative Bank of Kenya Limited ordered to discharge the entire parcel Matutu Settlement Scheme/641 to facilitate sub-division in the ratio 2:1 between the Deceased's estate and the Defendant
  4. 4.Immediately after sub-division, the Defendant to be registered absolute owner of 8 Acres (where he built a mud house) and the Deceased's proprietor of the 16 Acres with the permanent house
  5. 5.The Co-operative Bank of Kenya Limited at liberty to charge the Deceased's portion and, if not enough, the Plaintiff may look for other collaterals belonging to the Deceased
  6. 6.The Defendant to have the costs of the suit and of the Counter-claim

Authorities

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Legislation

  • Penal CodeSection 334(a)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to and occupation of land

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, "Ngare v Ogamba (Environment & Land Case E001 of 2022) [2024] KEELC 1075 (KLR)", Case Analysis (2024). ELC Case (Nyamira) - Plaint dated 1/4/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1075/eng@2024-02-15

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