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ELCPartially Allowed· [2024] KEELC 1478 (KLR)

Muriithi (As the administrator of the Estate of Naftaly Muriithi Njuki aka Naftali M Njuki v Abdilahi & 7 others (Environment & Land Case 66 of 2012) [2024] KEELC 1478 (KLR)

Environment and Land Court of Kenya
11 March 2024
4,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a fraudulently obtained Lamu land title, ordered it returned to the original owner's family, and awarded Kshs 500,000 in damages.

What this practically means

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Executive summary

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In this first-instance land dispute, the plaintiff (whose claim survived as that of the deceased registered owner, Naftaly Muriithi Njuki) challenged the transfer of plot Lamu/Hindi Magogoni/361 to the 1st Defendant. The plaintiff sought a permanent injunction, declarations that the Land Control Board consent of 3rd December 2009, the Deed of Acknowledgement of 11th November 2009, the discharge of charge and the registration of the 1st Defendant were fraudulent and void, rectification of the register, and general damages. The court framed three issues: whether the 1st Defendant acquired title fraudulently, whether the plaintiff was entitled to the prayers sought, and costs. Applying Section 26 of the Land Registration Act and the rule in Vijay Morjaria that fraud must be specifically pleaded and distinctly proved, the court found the registration in the deceased's name uncontroverted and held, on the testimony of PW1 and PW2, that he was coerced into signing the deed of acknowledgement and surrendering his title. The advocate who handled the transaction never met the alleged seller (the 3rd Defendant, a Land Adjudication employee) except by phone, and no sale agreement was produced. Invoking Section 80(1), the court cancelled the impugned entries, ordered reissuance of title in the deceased's name, issued a permanent injunction against the Defendants, and awarded general damages of Kshs 500,000 against the 1st to 5th Defendants, who were also ordered to pay the costs of the suit. Notably, the pleadings referenced parcel number 351 while the evidence and orders refer to 361.

Key legal issues

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01

Whether the 1st Defendant acquired title by fraudulent means

Holding

Yes. The transfer was procured by coercion and an unprocedural transaction; the plaintiff did not voluntarily execute the deed of acknowledgement or appear before the Land Control Board, and the title was therefore impeachable under Section 26(1)(b) of the Land Registration Act

Reasoning

The court found the registration in the deceased plaintiff's name uncontroverted and held that PW1 and PW2's testimony showed he was coerced into signing the deed of acknowledgement and surrendering his title. The advocate (DW1) never met the alleged seller (3rd Defendant), dealt with him only by phone, and was never shown any sale agreement. The 3rd Defendant, an employee of Land Adjudication and Settlement, never testified to defend the transaction. The transaction was disjointed and bypassed laid-down procedures, including the Land Control Board consent process.

p. 7
02

Whether fraud was properly pleaded and proved

Holding

Yes. The plaintiff particularized fraud at paragraph 15A of the re-amended Plaint, satisfying the rule that fraud must be specifically pleaded and distinctly proved

Reasoning

Relying on Vijay Morjaria v Nansingh Madhusingh Darbar, the court reaffirmed that fraud must be specifically pleaded with particulars on the face of the pleading and distinctly proved. The court found the plaintiff had pleaded and particularized the allegations of fraud and illegality, meeting this threshold, and then assessed the evidence against that pleading, finding the balance of probabilities met.

p. 6
03

Whether the plaintiff was entitled to rectification of the register and damages

Holding

Yes. The court exercised its power under Section 80(1) of the Land Registration Act to cancel the entries and restore the deceased plaintiff's title, and awarded general damages of Kshs 500,000 for the forceful ejection

Reasoning

The court invoked Section 80(1) of the Land Registration Act permitting rectification where a registration was obtained by fraud or mistake. It found the plaintiff was forcefully ejected and that DW3's claim of voluntary movement out was untruthful, with DW3 part of the scheme to defraud. It assessed general damages at Kshs 500,000 as a reasonable amount and directed cancellation of the 1st Defendant's title and reissuance in the deceased plaintiff's name.

p. 7

Legal principles established

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  • Fraud must be specifically pleaded and distinctly proved; it cannot be left to be inferred from the facts
  • Under Section 26(1)(b) of the Land Registration Act, a title is impeachable where it was acquired illegally, unprocedurally or through a corrupt scheme, even if the title holder was not a party to the vitiating factors
  • The court may order rectification of the register where a registration was obtained, made or committed by fraud or mistake

Court orders

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  1. 1.A permanent injunction restraining the Defendants from selling, offering to sell, disposing of, charging, mortgaging, subdividing, pledging, entering into, remaining in or otherwise interfering with the Deceased Plaintiff's ownership and quiet possession of Title Number Lamu/Hindi Magogoni/361
  2. 2.A declaration that the consent of the Lamu Land Control Board issued on 3rd December, 2009 was fraudulently, illegally, unlawfully and wrongfully issued and/or obtained, and that the 8th Defendant's meeting of 2nd December, 2009 was fraudulent, illegal and unlawful
  3. 3.A declaration that the Deed of Acknowledgement was fraudulently, illegally, unlawfully and wrongfully obtained and was incapable of transferring title, and that the transfer of the suit property to the 1st Defendant was fraudulent, illegal, unlawful, wrongful and void ab initio
  4. 4.A declaration that the registration of the Discharge of Charge of the Settlement Fund Trustees on 19th January, 2010 and the registration of the 1st Defendant as proprietor were fraudulent, illegal, unlawful and wrongful, and cancellation/revocation of entry number 2 on the encumbrances section and numbers 4 and 5 of the proprietorship section of the register (green card)
  5. 5.An order directing the Land Registrar Lamu County to cancel the title deed issued on 19th January, 2010 and issue the same in the name of the Deceased Plaintiff
  6. 6.An order that the 1st, 2nd, 3rd, 4th and 5th Defendants pay the Plaintiff general damages of Kshs 500,000 plus costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 80(1)
  • Registered Land Act (repealed)Section 28
  • Law of Contract ActSection 3(3)
  • Constitution of KenyaArticle 40
  • Civil Procedure RulesOrder 21 [1]

Cases cited (15)

  • Peter Muiruri Kamau v Mary Mwihaki Kamau
    [2017] eKLR
  • Nyakinyua and Kang'ei Farmers Company Ltd v Kariuki & Gathecha Resources Ltd (No 2)
    [1984] KLR 110
  • Karuri v Gituru
    [1981] KLR 247
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • Kinyanjui Kamau v George Kamau
    [2015] eKLR
  • Dhalla v Meralli
    [1995-98] EA 84
  • Jane Catherine K Karani v Daniel Mureithi Wachira, Civil Appeal No 26A of 2013, Nyeri
    [2014] eKLR
  • Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another
    2015 eKLR
  • Stephen Mburu & 4 others v Comat Merchant Ltd & Another
    [2012] eKLR
  • Shadrack Kuria Kimani v Stephen Gitau Nganga & another
    [2017] eKLR
  • Lilian Waithera Gachuhi v David Shikuku Mzee
    [2005] eKLR
  • Republic v City Council of Nairobi & 3 others
    (2014) eKLR
  • Eviline Karigu (Suing as Administratix of Estate of Late Muriungi M'Chuka alias Miriungi M'Gichuga) v M'Chabari Kinoro
    [2022] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Elijah Makeri Nyangwra v Stephen Mungai Njuguna & Another
    [2013] eKLR
Jurisdiction invoked
Original civil jurisdiction over a land dispute; rectification of register under Section 80(1) of the Land Registration Act, 2012

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, "Muriithi (As the administrator of the Estate of Naftaly Muriithi Njuki aka Naftali M Njuki v Abdilahi & 7 others (Environment & Land Case 66 of 2012) [2024] KEELC 1478 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1478/eng@2024-03-11

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