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ELCPartially AllowedNakuru ELC Case No 98 of 2017 (lead file, consolidated with ELC No 268 of 2017 and ELC No 42A of 2017)· [2024] KEELC 5114 (KLR)

Kamau & another v I&M Bank Limited & 4 others (Environment & Land Case 98, 268 & 47A of 2017 (Consolidated)) [2024] KEELC 5114 (KLR)

Environment and Land Court of Kenya
9 July 2024
6,315 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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Kenya's Environment and Land Court cancelled a land title obtained by fraud and ruled the bank's loan secured on it was void from the start.

What this practically means

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Executive summary

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This consolidated Environment and Land Court judgment at Nakuru (lead file ELC No 98 of 2017) arises from the sale of Nakuru Municipality Block 3/427. The plaintiff, Susan Njeri Kamau, sued after her late husband's land was transferred to the 2nd defendant (South Knight Limited, whose director Daniel Mucua Ndonga was the 3rd defendant) and later sold at auction by I & M Bank Limited (1st defendant) in exercise of its statutory power of sale after a loan default. She sought a mandatory injunction, a declaration that the transfer was fraudulent and the charge void, cancellation of title, damages and costs. The 1st defendant counterclaimed in ELC No 268 of 2017 for Kshs 9,037,123.55 plus interest, being the shortfall after the auction; the 2nd defendant also claimed damages for an allegedly unlawful sale. The court found the 3rd defendant's evidence contradictory: he disowned the 17th March 2014 agreement relied on by the plaintiff, relied on a different agreement dated 13th January 2014, and claimed a Kshs 10 million cash payment with no acknowledgment. The undated spousal consent was suspect and pages of the agreement were variously signed and thumb-printed. Applying Section 26(1)(b) of the Land Registration Act and the Elijah Makeri Nyangwara and Alice Chemutai Too line of authority, the court held the transfer was fraudulent and that no valid title passed, so the charge and auction were null and void. The plaintiff's suit succeeded; the 2nd and 3rd defendants' suit and the bank's counterclaim were dismissed.

Key legal issues

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01

Whether the 2nd and 3rd defendants paid the full purchase price and validly transferred the suit property

Holding

No - the transfer was fraudulent and without payment of the full purchase price; the plaintiff proved her case.

Reasoning

The 3rd defendant's evidence was contradictory: he disowned the agreement dated 17th March 2014 relied on by the plaintiff yet admitted an agreement dated 13th January 2014, while claiming the balance was paid in cash with no acknowledgment. A substantial cash payment of Kshs 10 million without acknowledgment or witnesses was improbable. Spurious and undated documentation, thumb-printed pages and the transfer of the title before completion of payment pointed to fraud.

p. 12
02

Whether the charge and subsequent auction were valid given the fraudulent root of title

Holding

The charge and sale were null and void as they emanated from a fraudulent transfer; an illegality cannot be sanitized by a purported legal charge.

Reasoning

Since the 2nd and 3rd defendants acquired title fraudulently and without paying the full purchase price, they had no capacity to charge the property as security. The bank's counterclaim, founded on that charge, could not stand. The court relied on Elijah Makeri Nyangwara and Alice Chemutai Too to hold that Section 26(1)(b) of the Land Registration Act removes protection even from innocent title holders where title was obtained illegally or unprocedurally.

p. 10
03

Whether the spousal consent to the transaction was valid

Holding

The undated spousal consent supplied by the 3rd defendant's lawyer was suspect and did not satisfy Section 79(3) of the Land Act.

Reasoning

The court noted the spousal consent was undated and was given to the 3rd defendant by his advocate, casting doubt on its authenticity. Relying on Geofirey Kinuthia Mungai v Progressive Credit Limited, the court invoked Section 79(3) of the Land Act requiring a charge of a matrimonial home to be executed or assented to by the chargor's spouse.

p. 10

Legal principles established

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  • A title procured by fraud cannot stand, and the protection of Section 26(1) of the Land Registration Act is lost where the title was obtained illegally, unprocedurally or through a corrupt scheme, even where the title holder was not party to the vitiating factors.
  • An invalid or fraudulent transfer cannot confer a good title capable of supporting a subsequent charge, and any transaction emanating from the fraudulent transfer is null and void.
  • Courts have power under Section 80 of the Land Registration Act to order rectification of the register where a registration was obtained by fraud or mistake.

Court orders

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  1. 1.An order of mandatory injunction restraining the Defendants from attaching, selling and/or disposing of or interfering with the Plaintiff's parcel of land known as Nakuru Municipality Block 3/427.
  2. 2.A declaration that the 2nd Defendant acquired Nakuru Municipality Block 3/427 fraudulently and the charge is null and void ab initio.
  3. 3.An order of cancellation of the title document held by the 2nd Defendant over Nakuru Municipality Block 3/427 and reversal of the details in the Land register to the original owner.
  4. 4.Damages for breach of agreement of Kshs 5 Million.
  5. 5.Costs of the suit to the Plaintiff with interest.
  6. 6.The 2nd and 3rd Defendant's suit in ELC Case No 268 of 2017 dismissed with costs.
  7. 7.The 1st Defendant's Counterclaim in ELC Case No 268 of 2017 dismissed with no order as to costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 40(1), 40(3), 40(6)
  • Land Registration ActSections 24, 25(1), 26(1), 80
  • Land ActSection 79(3)
  • Evidence ActSections 107(1), 109, 112, 176
  • Civil Procedure Rules 2011Order 1 Rule 1

Cases cited (19)

  • Josephine Mwikali v Omar Abdalla Kombo & another
    [2018] eKLR
  • Housing Company of East Africa Limited v Board of Trustees National Social Security Fund & 2 others
    [2018] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Wamugu v Goodison, One Hundred Twenty-Three Limited & others
    (Environment and Land Case Civil Suit 141 of 2012) [2024] KEELC 1357 (KLR)
  • In the matter of the Estate Francis Kamau Erastus Mungai (deceased) Succession Cause No 202 of 2016
  • Attorney General v Zinj Limited
    (Petition 1 of 2020) [2021] KESC 23 (KLR) (Civ)
  • Kenya Tourist Development Corporation vs Sundowner Lodge Limited
    (2018) eKLR
  • Moses Njane Ngendo v Josiah Anyangu Omutoko & another
    [2022] eKLR
  • John Njoroge Warui vs Universal Bank Ltd
    (2000) eKLR
  • Francis Joseph Kamau vs Housing Finance Company of Kenya Limited
    [2014] eKLR
  • Daima Bank Limited (In liquidation) vs Savannah Development Company Ltd & another
    (2020) eKLR
  • Universal Engineering Works v Mohamedali Suleiman Essaji
    [1951] 2LRK 99
  • Mrao v First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Amina Karama v Njagi Gachangua & 3 others
    [2020] eKLR
  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Geofirey Kinuthia Mungai & another v Progressive Credit Limited
    [2018] eKLR
  • Elijah Makeri Nyangwara V Stephen Mungai Njuguna & another
    [2013] eKLR
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    Civil Appeal No. 246 of 2013 (2015) eKLR
  • In the matter of the Estate of Francis Kamau Erastus Mungai (Deceased)
    [2018] eKLR - Succession Cause 202 of 2016
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (implied; not expressly stated in the judgment)

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, "Kamau & another v I&M Bank Limited & 4 others (Environment & Land Case 98, 268 & 47A of 2017 (Consolidated)) [2024] KEELC 5114 (KLR)", Case Analysis (2024). Nakuru ELC Case No 98 of 2017 (lead file, consolidated with ELC No 268 of 2017 and ELC No 42A of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5114/eng@2024-07-09

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