Kalama (Suing as the Personal Representative of the Estate of Victor Karani Mkunzo) v Mwaro & 4 others (Environment & Land Case 5 of 2018) [2024] KEELC 1244 (KLR)
The bottom line
#A land buyer who couldn't prove a valid signed sale agreement and never pleaded fraud lost her claim, and Mombasa Cement kept its registered title.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff was the rightful owner of the suit land
The plaintiff was not the rightful owner; the vendor never signed the sale agreement and the person who signed on his behalf lacked a power of attorney
The green card showed the land was first registered to the Settlement Fund Trustees, then to Patterson Gona Kalama, and never to the 1st Defendant Changawa. The plaintiff admitted the vendor Changawa never signed the 1989 sale agreement; it was signed by his daughter Josephine Kalama. Following Ocra Realtors, an agent without a power of attorney has no capacity to execute a sale agreement on behalf of a landowner, so the plaintiff's contractual basis of ownership failed.
Whether the restriction on the suit land was procedurally removed
The restriction was removed procedurally; the Registrar complied with Section 78 of the Land Registration Act
DW3, the Kilifi Land Registrar, produced letters showing the deceased was given a twenty-one-day notice for a hearing on 23rd March 2011, wrote indicating he would not attend, and was invited by letter dated 3rd May 2011 for a hearing on 15th June 2011. Section 78 requires only that parties affected be given an opportunity of being heard before removal. The court found the deceased was in communication with the Registrar and received all notices, so the removal under Section 73(3) was lawful.
Whether the 2nd and 3rd Defendants acquired their titles procedurally
The 3rd Defendant is the registered owner whose title is prima facie indefeasible; fraud was not pleaded or proved
Under Sections 24(a) and 26(1) of the Land Registration Act, a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on the ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The plaintiff's claim of fraud was not pleaded or particularized in the amended plaint; allegations of fraud in submissions do not form part of pleadings. The 3rd Defendant conducted due diligence and obtained a clean search.
Legal principles established
#- An agent cannot sign a sale agreement on behalf of a vendor without a power of attorney
- Fraud must be specifically pleaded, particularized and distinctly proved; it cannot be inferred from the facts or raised for the first time in submissions
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- Before removing a restriction the Land Registrar must give the parties affected an opportunity of being heard
Court orders
#- 1.The Plaintiff's suit is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to title to land parcel Kilifi/Roka/104
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalama (Suing as the Personal Representative of the Estate of Victor Karani Mkunzo) v Mwaro & 4 others (Environment & Land Case 5 of 2018) [2024] KEELC 1244 (KLR)", Case Analysis (2024). Not stated in the judgment (plaint dated 11th January 2018, amended 5th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1244/eng@2024-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.