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ELCPartially AllowedLand Case 63 of 2017· [2024] KEELC 4399 (KLR)

Ng’ang’a v Kariuki & 5 others (Land Case 63 of 2017) [2024] KEELC 4399 (KLR)

Environment and Land Court
29 May 2024
MNMwangi Njoroge
6,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who forged ahead beyond the agreed purchase was stripped of the land, and buyers from him lost their titles too.

What this practically means

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Executive summary

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The plaintiff, registered owner of plot Lamu/Lake Kenyatta Settlement Scheme/780 measuring 4.10 Ha, sold 2.5 acres to the 1st defendant under a written agreement dated 30/6/2010 for Kshs 900,000, and entrusted him with the original title to facilitate survey and subdivision. Plot 780 was subdivided into four parcels, with 3884 retained by the plaintiff. The plaintiff later discovered that plot 3884 had been subdivided and one resultant portion (3926) registered in the 1st defendant's name, who in turn subdivided it and sold portions (5664 and 5665) to the 3rd and 4th defendants. The plaintiff sought injunction, declarations of fraud, rectification of the RIM, demolition of structures and alternative compensation. The court framed four issues. It found no evidence of any oral agreement for the sale of extra land, and held such an agreement would in any event be unenforceable under Section 3(3) of the Law of Contract Act. Applying Section 107 of the Evidence Act, it held the 1st defendant failed to prove the plaintiff authorized the subdivision of 3884 or executed the transfer documents, finding the subdivision fraudulent and unauthorized. Under Section 26 of the Land Registration Act and the nemo dat rule, the court held the 1st defendant could pass no valid title to the 3rd and 4th defendants, whose derivative titles were also illegal. Judgment was entered for the plaintiff against the 1st to 4th defendants: declarations of nullity and fraud were issued, a permanent injunction granted, the Registrar and Surveyor ordered to rectify the RIM by reinstating parcel 3884 in the plaintiff's name, and the 1st, 3rd and 4th defendants ordered to demolish structures and vacate. The alternative compensation order was refused for want of valuation evidence. Each party was ordered to bear its own costs, the other defendants being found innocent of wrongdoing.

Key legal issues

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01

Existence and enforceability of the alleged oral agreement for a further 0.5/0.75 acres

Holding

No valid oral sale agreement was proved; even if it existed, it would be unenforceable under Section 3 of the Law of Contract Act

Reasoning

The 1st defendant alleged an oral agreement of 3/6/2011 for extra land but called no witnesses to it and produced no acknowledgments of payment. The court found it inconsistent that a careful party who insisted on a written agreement for the first 2.5 acres would transact orally for the extra land. Further, Section 3(3) of the Law of Contract Act requires land contracts to be written, signed and attested, rendering any oral agreement unenforceable.

p. 7
02

Whether the subdivision of plot 3884 and transfer of 3926 to the 1st defendant was fraudulent

Holding

Yes — the subdivision and transfer were unauthorized, illegal and fraudulent and subject to nullification

Reasoning

The burden fell on the 1st defendant to prove the plaintiff executed the subdivision and transfer documents; no expert evidence of signature was tendered and the plaintiff's denial stood. Noting the plaintiff had entrusted the title deed to the 1st defendant, and the long delays in issuance of titles, the court found the 1st defendant took advantage of that trust to obtain LCB consent and transfer a subdivision to himself.

p. 10
03

Validity of the transfer of plots 5664 and 5665 to the 3rd and 4th defendants

Holding

The transfers were invalid; the titles are illegal and liable to cancellation

Reasoning

Under Section 26 of the Land Registration Act, title is indefeasible except where acquired through fraud or an illegal or corrupt scheme. Since the subdivision of 3884 was fraudulent, the 1st defendant had no good title to pass. Applying nemo dat quod non habet, the subsequent transfers to the 3rd and 4th defendants conferred no valid legal interest and the derivative titles must be cancelled and the land reinstated to the plaintiff.

p. 10

Legal principles established

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  • An oral contract for the disposition of an interest in land is unenforceable under Section 3 of the Law of Contract Act
  • A party alleging fraud bears the burden of proof on a balance of probability
  • A fraudulent predecessor in title passes no good title; a derivative title founded on fraud is liable to cancellation under the nemo dat principle

Court orders

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  1. 1.Declaration that the second survey and excision of plot no Lamu/Lake Kenyatta 1/3926 from plot no 3884 and its registration in the 1st defendant's name is illegal, null and void
  2. 2.Declaration that the third survey and subdivision of plot no 3926 and disposal of plots 5664 and 5665 to the 3rd and 4th defendants was fraudulent
  3. 3.Declaration that the 1st, 3rd and 4th defendants fraudulently and illegally acquired plots 3926, 5664 and 5665
  4. 4.Permanent injunction restraining the 1st, 3rd and 4th defendants from developing or disposing of plots 5664 and 5665
  5. 5.Land Registrar and County Surveyor to rectify the RIM by consolidating parcels 3926 and 3925 to reinstate parcel 3884 and reinstate the plaintiff as registered proprietor
  6. 6.1st, 3rd and 4th defendants to demolish all structures on the reinstated parcel 3884 and vacate, failing which forcible eviction
  7. 7.Each and every party to bear their own costs of the suit

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Evidence ActSection 107(1)
  • Land Registration ActSection 26(1)
  • Auctioneers ActCap. 526 (referenced in proviso)

Cases cited (1)

  • Susan Mumbi Versus Kefala Grebedhin
    Nairobi HCC No. 332 of 1993
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (as implied by the suit's nature; not expressly cited)

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, "Ng’ang’a v Kariuki & 5 others (Land Case 63 of 2017) [2024] KEELC 4399 (KLR)", Case Analysis (2024). Land Case 63 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4399/eng@2024-05-29

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