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ELCPartially AllowedEnvironment & Land Case E453 of 2021· [2024] KEELC 3526 (KLR)

Kitela v Shenga & 2 others (Environment & Land Case E453 of 2021) [2024] KEELC 3526 (KLR)

Environment and Land Court
4 April 2024
10,801 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that a land company cannot allocate the same plot twice, protecting a buyer who did proper checks.

What this practically means

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Executive summary

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The Plaintiff sued over LR No. Nairobi/Block 105/4615 (formerly Plot No. V5045) within Embakasi Ranching Company Ltd, seeking a declaration of ownership, a permanent injunction, cancellation of the lease certificate held by the 3rd Defendant, rectification of the register, general damages and costs. The 1st Defendant (the vendor) and the 2nd Defendant (the ranching company) defended; the 3rd Defendant did not enter appearance and the suit proceeded against him by formal proof. The court framed four issues. On the first, it found that Plot V5045 was duly allocated to the 1st Defendant, who was issued share certificate number 0106415, and that the 2nd Defendant's subsequent purported reallocation of the same ground under the guise of Plot V15911 to one Bounty Ndungu Kamau, a minor, was a nullity, applying Benja Properties and Wambia on allotments attaching in rem to specific parcels. On the second issue, the court held the Plaintiff a bona fide purchaser for value without notice, applying Arthi Highway Developers, Mwangi James Njehia and Dina Management, and protected under sections 24 and 25 of the Land Registration Act. On the third, it held the 2nd Defendant failed to plead or particularize fraud as required by Order 2 Rule 10 of the Civil Procedure Rules and adduced no credible evidence, its surveyor witness being contradictory. The court entered judgment for the Plaintiff: declaration of ownership, compelled execution of the lease instrument, cancellation and gazettement of the impugned titles, eviction of Bounty Ndungu Kamau and the 3rd Defendant, a permanent injunction, and general damages of Kes.1,000,000 with interest at 14% per annum. The suit against the 1st Defendant was dismissed without costs; costs were awarded against the 2nd and 3rd Defendants.

Key legal issues

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01

Allocation of Plot V5045 (now L.R No. Nairobi/Block 105/4615) to the 1st Defendant

Holding

The plot was duly and lawfully allocated to the 1st Defendant, who complied with the terms of allotment; the 2nd Defendant ceased to have rights over it and could not reallocate the same ground under the guise of Plot V15911

Reasoning

DW1 testified he was allocated plot V5045 and issued share certificate number 0106415. DW2, the 2nd Defendant's own surveyor, confirmed the share certificate in favour of the 1st Defendant was valid and duly issued by the 2nd Defendant. Having allocated and authenticated the plot, the 2nd Defendant could not reallocate the same ground to a third party, which purported reallocation was a nullity.

p. 11
02

Whether the Plaintiff is a bona fide purchaser for value

Holding

Yes; the Plaintiff bought from a vendor with valid title, paid consideration, obtained a 2nd Defendant-sanctioned transfer and share certificate, and exercised due diligence

Reasoning

The Plaintiff purchased from the 1st Defendant, who held a valid allocation and share certificate; the sale was sanctioned by the 2nd Defendant, a share certificate was issued to the Plaintiff, and a surveyor pointed out the beacons. The court applied the Katende/Hannington Njuki ingredients as restated in Arthi Highway Developers, Mwangi James Njehia and Dina Management, and found the Plaintiff protected under sections 24 and 25 of the Land Registration Act.

p. 15
03

Whether the 2nd Defendant proved fraud against the 1st Defendant

Holding

No; fraud was neither pleaded nor particularized, and no credible evidence was adduced

Reasoning

The 2nd Defendant did not implead fraud or supply particulars as required by Order 2 Rule 10 of the Civil Procedure Rules. DW2 admitted he had no evidence of any criminal charge against the 1st Defendant and confirmed the certificates were valid. His testimony was contradictory and he was found lacking in credibility. The purported allocation to a minor was itself illegal.

p. 19

Legal principles established

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  • An interest in land cannot be allotted, alienated or transferred when the specific parcel of land allotted is not in existence; allotment is a transaction in rem attaching to a specific parcel
  • Fraud must be specifically pleaded with particulars and distinctly proved; evidence of fraud cannot be tendered where fraud has not been pleaded
  • Ingredients of a bona fide purchaser for value without notice
  • A registered proprietor acquires indefeasible title only where the allocation was legal, proper and regular

Court orders

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  1. 1.A declaration that the Plaintiff is the lawful owner and proprietor of L.R No Nairobi/Block 105/4615
  2. 2.The 2nd Defendant ordered to generate, execute, sign and seal the requisite lease instrument and other conveyance to facilitate transfer and registration of L.R No Nairobi/Block 105/4615 in favour of the Plaintiff
  3. 3.The certificate of title issued in favour of Bounty Ndungu Kamau (minor), if any, cancelled and revoked
  4. 4.The certificate of title in respect of L.R No Nairobi/Block 105/4615 issued to the 3rd Defendant, if any, revoked, cancelled and nullified
  5. 5.The Chief Land Registrar ordered to gazette the cancellation of the certificate of title to Bounty Ndungu Kamau and the 3rd Defendant
  6. 6.An order of eviction issued against Bounty Ndungu Kamau and the 3rd Defendant from the suit property
  7. 7.A permanent injunction restraining the 2nd and 3rd Defendants from entering upon, remaining on or dealing with the suit property
  8. 8.General damages of Kes.1,000,000 awarded against the 2nd and 3rd Defendants with interest at 14% per annum from the date of judgment
  9. 9.The Plaintiff's suit against the 1st Defendant dismissed, albeit without costs
  10. 10.Plaintiff awarded costs of the suit against the 2nd and 3rd Defendants to be taxed in the usual manner

Authorities

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Legislation

  • Land Registration Actsections 24 and 25
  • Civil Procedure RulesOrder 2 Rule 10
  • Civil Procedure RulesOrder 2 Rule 4

Cases cited (14)

  • Benja Properties Limited versus Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR
  • Philemon L. Wambia v Gaitano Lusitsa Mukofu & 2 others
    [2019] eKLR
  • Arthi Highway Developers Limited versus West End Butchery Limited & 6 others
    [2015] eKLR
  • Mwangi James Njehia v Janetta Wanjiku Mwangi & another
    [2021] eKLR
  • Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v. Attorney General & 4 Others
    Nairobi Civil Appeal No. 146 of 2014
  • Katende v. Haridar & Company Ltd
    (2008) 2 EA 173
  • Hannington Njuki v William Nyanzi
    High Court civil suit number 434 of 1996
  • Dina Management Limited v County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)
  • Samuel Kamere v Lands Registrar, Kajiado
    Civil Appeal No 28 of 2005 [2015] eKLR
  • Kuria Kiarie & 2 others versus Sammy Magera
    [2018] eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742
  • Funzi Development Ltd & others v County Council of Kwale
    Mombasa Civil Appeal No 252 of 2005 [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership of land (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kitela v Shenga & 2 others (Environment & Land Case E453 of 2021) [2024] KEELC 3526 (KLR)", Case Analysis (2024). Environment & Land Case E453 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3526/eng@2024-04-04

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