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ELCPartially AllowedKajiado ELC Case (plaint dated 14/10/2022)· [2024] KEELC 1148 (KLR)

WAGITHUKU WAINAINA & another v SIRIA ENE NTAKITO & 4 others

Environment and Land Court
29 February 2024
MGM.N. Gicheru
1,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court cancelled fraudulently obtained land titles and returned ownership to the original buyers, but refused to pay damages for trespass.

What this practically means

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Executive summary

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The plaintiffs sued five defendants seeking a permanent injunction, declarations that the defendants' titles to subdivisions 35921, 35922 and 35923 of Kajiado/Loodariak/770 are null and void, rectification of the register, vacant possession, damages for trespass and costs. The plaintiffs purchased the 30-hectare suit land in 1994, were registered and issued a title deed, and later used it as bank security. In 2021 a search revealed the green card missing and the land subdivided into three parcels registered in the names of the 1st, 2nd and 3rd defendants, which the plaintiffs alleged was fraudulent; the second defendant was arrested and charged over the fraud. Though duly served, the defendants neither entered appearance nor filed a defence, and interlocutory judgment was entered on 26/4/2023. At the hearing the plaintiffs' documentary evidence was uncontroverted. M.N. Gicheru J framed four issues and found the plaintiffs to be the registered owners who never transferred the land; the subdivision and transfers lacked documentation from the registered owners and were null and void under Section 26(b) of the Land Registration Act, which exposes titles acquired illegally, unprocedurally or through a corrupt scheme to challenge. Judgment was entered in terms of prayers (a), (b), (c), (d), (e) and (g) of the plaint. Damages for trespass and mesne profits were refused for want of evidence of any trespass, its extent or duration, the court holding costs sufficient compensation. Judgment dated 29 February 2024 at Kajiado.

Key legal issues

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01

Whether the defendants' titles were lawfully acquired

Holding

The subdivision and transfers were null and void; the defendants' titles were acquired illegally and unprocedurally and are cancelled

Reasoning

The subdivision was not initiated by the registered owners and lacked genuine documents: no sale agreement, no Land Control Board consent, no executed transfer form, and no stamp duty or purchase price payment evidence. Under Section 26(b) of the Land Registration Act, titles procured illegally, unprocedurally or through a corrupt scheme are defeasible. The plaintiffs' uncontroverted documentary evidence established their registered ownership, and the plaintiffs had never transferred the land to anyone.

p. 3
02

Whether damages for trespass were proved

Holding

No damages awarded for want of proof of trespass, extent or duration

Reasoning

Though trespass damages were claimed, no evidence was led showing any trespass on the land, how much land was affected or for how long. Such evidence is essential for proving and assessing damages. In its absence, the court held that an award of costs would be sufficient compensation and declined prayers (f) and (h).

p. 3

Legal principles established

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  • A certificate of title acquired illegally, unprocedurally or through a corrupt scheme is subject to challenge under Section 26(b) of the Land Registration Act

Court orders

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  1. 1.Permanent injunction restraining the 1st, 2nd and 3rd defendants from interfering with the suit property Kajiado/Loodariak/770 (prayer a)
  2. 2.Declaration that the 1st, 2nd and 3rd defendants' purported titles to Kajiado/Loodariak 35921, 35922 and 35923 are illegal, null and void (prayer b)
  3. 3.Declaration that the plaintiffs are the bona fide owners of the suit land (prayer c)
  4. 4.Order directing the 4th defendant to rectify its register to cancel the defendants' registrations and revert to L.R. No. 770 (prayer d)
  5. 5.Order of vacant possession against the defendants (prayer e)
  6. 6.Costs of the suit (prayer g)

Authorities

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Legislation

  • Land Registration ActSection 26(b)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land title and registration disputes

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, "WAGITHUKU WAINAINA & another v SIRIA ENE NTAKITO & 4 others", Case Analysis (2024). Kajiado ELC Case (plaint dated 14/10/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1148/eng@2024-02-29

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