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ELCPartially AllowedMachakos Civil Suit (number not stated in judgment; Plaint dated 23rd September 2003, amended 2nd December 2008)· [2024] KEELC 1692 (KLR)

Ulungalu Na Utanu Yatta Trading Industry and Transport Co. Limited v Francis Mutua Mboya t/a Mutua Mboya & Nzissi Advocates & 2 others (Environment & Land Case 72 of 2003) [2024] KEELC 1692 (KLR)

Environment and Land Court
4 April 2024
6,844 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court revoked land titles obtained through a fake court case, ruling that even registered titles fall when built on fraud.

What this practically means

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Executive summary

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The Plaintiff company sued over LR No. Machakos/Matuu/594, which it owned as at June 2002. The 1st Defendant, a former advocate of the Plaintiff, claimed he purchased the land in 1993 from two directors for Kshs. 240,000 and later perfected his title through a consent order in Machakos HCCC No. 82 of 2002, which he had instituted against the company without a board resolution. The court found that the defendants in HCCC No. 82 of 2002 were never served; imposters instructed the 2nd Defendant (an advocate) to enter appearance; the 1st Defendant altered the draft consent to include a transfer of the land to himself; the consent order was issued by the Deputy Registrar while the transfer was executed by the Senior Executive Officer; and during the pendency of this suit the 1st Defendant transferred the land to a third party, after which it was subdivided into six plots. Applying Sections 24(a) and 26(1) of the Land Registration Act and following Arthi Highway Developers and Richard K. Bunei v Lorien Ranching, the court held that fraud displaces indefeasibility of title, that the 1st Defendant was not a bona fide purchaser since his root of title was fettered, and that the consent orders were a nullity that did not bind the company. Judgment was entered for the Plaintiff: the HCCC No. 82 of 2002 proceedings and consent orders were declared nullities, all resultant titles were revoked and reverted to the Plaintiff, a permanent injunction issued against the 1st Defendant, the sale agreement with the 3rd Defendant was declared null and void, and costs were awarded against the 1st Defendant. The 2nd Defendant was exonerated, having himself been deceived by the imposters.

Key legal issues

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01

Whether the 1st Defendant legally acquired the suit land

Holding

No. The acquisition was tainted by fraud: the consent in HCCC No. 82 of 2002 was procured against imposters, no company resolution authorized the sale or the suit, the draft consent was altered, and the transfer was executed by the Senior Executive Officer instead of the Deputy Registrar.

Reasoning

The court found the 1st Defendant dealt only with two directors without a board resolution, manipulated the consent order (which differed from the draft approved by his own advocate), avoided serving the 2nd Defendant with the final consent, and sought the Executive Officer to sign transfer forms knowing the Deputy Registrar should sign High Court orders. During the pendency of the suit he transferred and disposed of the land, which the court viewed as an attempt to defeat the suit. These 'glaring anomalies' discharged the Plaintiff's burden of proving fraud.

p. 7
02

Whether the 1st Defendant is a bona fide purchaser for value without notice

Holding

No. He cannot rely on bona fide purchase because the root of his title was fettered; he dealt only with two directors, the minutes authorizing the sale were unclear and irregular (persons marked absent signed them), and as the Plaintiff's own former advocate he was aware the title was challenged.

Reasoning

The court applied Katende v Haridar & Company Ltd on the parameters of a bona fide purchaser and Munyu Maina v Hiram Gathira Maina on tracing the root of title. Since the 1st Defendant's root of title was the fraudulent consent in HCCC No. 82 of 2002, his title was fettered, and he was held responsible for disputes with third parties who acquired the resultant subdivisions.

p. 11
03

Whether the consent order in HCCC No. 82 of 2002 bound the Plaintiff

Holding

No. The consent was entered into with imposters who were not the Plaintiff's directors and who were never served; the consent and resulting proceedings were a nullity and could not bind the Plaintiff.

Reasoning

DW2, the advocate who acted for the defendants in HCCC No. 82 of 2002, confirmed the persons who instructed him were imposters and that the consent he signed was meant only to compromise an application, not to conclude the suit and transfer the land; a paragraph was added without his consent. Relying on Richard K. Bunei v Lorien Ranching Company Limited, the court held consent orders procured by fraud through persons purporting to act for a company without authority are nullities and may be impeached in a fresh suit.

p. 11
04

The status and sanctity of registered title under the Land Registration Act

Holding

Section 24(a) vests absolute ownership in the registered proprietor, but Section 26(1) permits challenge on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme; here the proviso was engaged and the titles were revoked under Section 80 LRA / Section 143 RLA.

Reasoning

The court cited Arthi Highway Developers Limited v West End Butchery Limited on the sanctity and indefeasibility of title, but noted the statutory exceptions. Having found fraud in the acquisition, it invoked Section 143 of the repealed Registered Land Act (similar to Section 80 of the Land Registration Act) to revoke and revert all resultant titles to the Plaintiff company.

p. 11

Legal principles established

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  • A title procured through a fraudulent consent order obtained against imposters cannot be sanctified; the registered proprietor's indefeasible title yields to proof of fraud or misrepresentation to which the proprietor is a party.
  • A court has jurisdiction, in a fresh action, to set aside a judgment or consent order obtained by fraud; the fraud must be alleged and established by strict proof.

Court orders

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  1. 1.A declaration that the Memorandum of Appearance and defence as well as the proceedings and consent orders in Civil Suit No. 82 of 2002 together with all consequential orders are a nullity.
  2. 2.The Title to LR No. Machakos/Matuu/594 issued to the 1st Defendant including the resultant titles Nos. 5955, 5956, 5957, 5958, 5959 and 5960 be and are hereby revoked and reverted back to the name of the Plaintiff.
  3. 3.A permanent injunction restraining the 1st Defendant from transferring, alienating, trespassing or in any other manner interfering with the Plaintiff's quiet possession of LR No. Machakos/Matuu/594.
  4. 4.The Sale Agreement between the 3rd Defendant and the 1st Defendant be and is hereby declared null and void.
  5. 5.Costs of the suit awarded to the Plaintiff to be borne by the 1st Defendant.

Authorities

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Legislation

  • Land Registration Act, 2012Section 24(a)
  • Land Registration Act, 2012Section 26(1)
  • Land Registration Act, 2012Section 80
  • Registered Land Act (repealed)Section 143
  • Registration of Titles Act (repealed)Section 23(1)

Cases cited (12)

  • Munyu Maina vs Hiram Gathira Maina
    Civil Appeal No. 239 of 2009
  • R vs Paul Kihara Kariuki, Attorney General and 2 Others Ex Parte Law Society of Kenya
  • Elizabeth O. Odhiambo v South Nyanza Sugar Co. Ltd
    [2019] eKLR
  • Sangram Singh vs Election Tribunal Kotah
    AIR 1953 664
  • Arthi Highway Developers Limited Vs West End Butchery Limited and Others
    Civil Appeal No. 246 of 2013
  • Richard K. Bunei & 8 others t/a Geo-Estate Development Services v Lorien Ranching Company Limited & 799 others (being sued on behalf of themselves and on behalf of alleged 795 Members)
    [2017] eKLR
  • Katende V Haridar & Company Ltd
  • Cole Vs. Langford
    [1898] 2 QB 36
  • Flower Vs. Lloyd
    6 Ch. D 297
  • Baker Vs. Wadsworth
    [1898] 67 L.J. Q.B 301
  • Jonesco vs. BEARD
    [1930] AC
  • Hip Goong Hong case
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court under the Land Registration Act, 2012 (Sections 24(a), 26(1), 80) and the Registered Land Act (repealed), Section 143

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, "Ulungalu Na Utanu Yatta Trading Industry and Transport Co. Limited v Francis Mutua Mboya t/a Mutua Mboya & Nzissi Advocates & 2 others (Environment & Land Case 72 of 2003) [2024] KEELC 1692 (KLR)", Case Analysis (2024). Machakos Civil Suit (number not stated in judgment; Plaint dated 23rd September 2003, amended 2nd December 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1692/eng@2024-04-04

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