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ELCPartially Allowed· [2024] KEELC 3981 (KLR)

Makau & 2 others & 2 others (Suing as the Administrators of the Estate of the Late Thomas Makau Musyoki - Deceased) v Syokimau Farm Limited & 2 others (Environment & Land Case E028 of 2022) [2024] KEELC 3981 (KLR)

Environment and Land Court
29 April 2024
7,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided a title issued to a defunct company and upheld the family's 1988 land title, ordering eviction and registry correction.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Thomas Makau Musyoki (deceased), sued Syokimau Farm Limited, a second defendant, and the 3rd defendant (land registry), seeking eviction, a permanent injunction, rectification of the register to reinstate the deceased as proprietor, damages for trespass and costs over L.R No. 12715/491 (Grant No. I.R 45955). They traced their title to a 1988 purchase from Beatrice Mwongeli Kawinzi, widow of Kawinzi Makau, an original allottee and shareholder of Syokimau Farm Limited, with registration of the deceased as proprietor on 8th December 1988. The 1st and 2nd defendants, through Paul Masila Kimeu claiming to be the company's liquidator, countered that the property had reverted to the company upon Kawinzi Makau's non-compliance with allotment terms and that the plaintiffs' title was procured by fraud. The court framed two issues: whether the plaintiffs have a good title, and whether they are entitled to the prayers. Applying section 26 of the Land Registration Act and the competing-titles investigation approach, the court found the plaintiffs' root of title clean and chronologically documented. It found the defendants' minutes of 26th June 2013 to be forgeries, noted the Gazette Notice showed winding up on 26th July 2013 with no liquidator appointed, and held the company ceased to exist, rendering its 2020 registration as proprietor null and void. The claim was allowed: eviction within ninety days, a permanent injunction binding also on DW1 and DW2 as agents of the defunct company, and rectification of the register. Damages for trespass were refused because Kimeu and Mutuku were not sued personally. No costs order appears in the final orders.

Key legal issues

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01

Whether the plaintiffs have a good title to the suit property

Holding

The plaintiffs proved a clean root of title through a chronological chain of transactions from Kawinzi Makau's allotment to the sale to the deceased and registration in his name in 1988

Reasoning

The plaintiffs produced the title registered in the deceased's name on 8th December 1988, the 1988 sale agreement, the letter of allotment and share certificate in Kawinzi Makau's name, receipts for share subscription and survey fees, and company letters acknowledging the deceased as shareholder. The defendants' own shareholder register confirmed Kawinzi Makau was member number 243. The court found the plaintiffs' root of title clean.

p. 10
02

Whether the 1st and 2nd defendants' title is valid

Holding

The defendants' title was procured irregularly, unprocedurally and illegally; the company had been wound up in July 2013 and could not be registered as owner in 2020

Reasoning

The Gazette Notice showed winding up on 26th July 2013 with no liquidator appointed; the minutes of 26th June 2013 were forgeries (that date was a Wednesday, not Saturday, and no administrator was named in the Gazette). A wound-up, non-existent company could not be registered as proprietor in 2020. The defendants produced no process for the alleged reversion of the property from Kawinzi Makau.

p. 11
03

Whether the plaintiffs are entitled to the prayers sought

Holding

The plaintiffs, having demonstrated indefeasible ownership, are entitled to eviction, permanent injunction and correction of the registry records; damages for trespass were refused

Reasoning

Sections 24, 25 and 26 of the Land Registration Act protect lawfully acquired title. The court granted eviction within 90 days, permanent injunction binding also on DW1 and DW2 as agents of the non-existent company, and an order to the 3rd defendant to reinstate the deceased as registered proprietor. Damages were refused because the individuals responsible were not sued personally.

p. 11

Legal principles established

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  • When faced with competing titles over the same land, the court must investigate from the root of title, and the title that conforms to procedure and traces its root without a break prevails
  • Registration of property in the name of a company that has been wound up and no longer exists is null and void

Court orders

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  1. 1.Defendants, their servants, agents or persons representing themselves in the name of Syokimau Farm Limited to vacate L.R No. 12715/491 (Grant No. I.R 45955) within ninety days, in default eviction orders to issue
  2. 2.Permanent injunction restraining the defendants from entering upon, occupying, trespassing or otherwise meddling in the suit property
  3. 3.Order directed at the 3rd defendant to correct the Lands Registry records, reinstate the deceased Thomas Makau Musyoki as registered proprietor and issue the plaintiffs a corrected Official Search result

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40(1) and (6)
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25
  • Land Registration ActSection 26

Cases cited (12)

  • Wreck Motors Enterprises v The Commissioner of Lands & others
    Civil Appeal No. 71 of 1997
  • Gitwany Investment Ltd v Tajmal Ltd & 3 Others
    [2006] eKLR
  • Joseph Kiprotich Bor v Tabutany Chepkoech Chebusit
    [2021] eKLR
  • Alberta Mae Gacie v The Attorney General & 4 others
    HCCC No. 522 of 200
  • Macfoy v United Africa Ltd
    [1961] 3 All E.R. 1169
  • West End Butchery v Arthi Highway Developers Ltd & 6 Others
    [2012] eKLR
  • Iqbal Singh Rai v Mark Lecchini and The Registrar of Titles
    Civil Case No. 1054 of 2001
  • Katende v Haridas & Company Ltd
    [2008] 2 EA 174
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    [2015] eKLR
  • Alberta Mae Gacii v Attorney General and 4 Others
    [2006] eKLR
  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Ajit Bhogal v Kenya Power and Lighting Company Limited
    [2020] eKLR
Jurisdiction invoked
Original civil suit under the Land Registration Act and Article 40 of the Constitution of Kenya 2010

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, "Makau & 2 others & 2 others (Suing as the Administrators of the Estate of the Late Thomas Makau Musyoki - Deceased) v Syokimau Farm Limited & 2 others (Environment & Land Case E028 of 2022) [2024] KEELC 3981 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3981/eng@2024-04-29

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