Ekulo v Makokha (Environment & Land Case 66 of 2019) [2024] KEELC 5309 (KLR)
The bottom line
#A Kenyan court cancelled a land title bought using a forged sale agreement, confirming that a title deed alone cannot protect a fraudulently acquired piece of land.
What this practically means
#Executive summary
#Key legal issues
#Whether the transfer of the suit land to the Defendant was procured fraudulently
Yes - the sale agreement dated 12th November 2008 was not executed by the Plaintiff and was a forgery
The court compared the signature on the sale agreement with the Plaintiff's thumb-printed pleadings and thumb-printed Identity Card, and considered the Plaintiff's testimony that he never visited the advocate's office or the Land Control Board. It concluded the Plaintiff did not execute the agreement, which was the fundamental document supporting the Defendant's title. Once its validity was impeached, the Defendant's title had no basis. Fraud was proved to the required standard.
Whether the Defendant's title should be cancelled and revert to the Plaintiff
Yes - under Sections 26(1) and 80(1) of the Land Registration Act, a fraudulently acquired title is not indefeasible and the court may order rectification
Section 26(1) LRA protects title except where acquired by fraud or misrepresentation to which the proprietor is a party, or illegally or unprocedurally. Article 40(6) of the Constitution excludes unlawfully acquired property from protection. The Defendant was not an innocent purchaser; using the Plaintiff's official documents placed him at the centre of the fraud. Section 80(1) empowers rectification where registration was obtained by fraud.
Whether a permanent injunction should issue against the Defendant
Yes - it follows as a matter of course from cancellation of the title and reversion to the Plaintiff
Having cancelled the Defendant's title and reverted the land to the Plaintiff, the court held an order of permanent injunction restraining interference with the suit land was well merited and granted it.
Who shall bear the costs of the suit
Each party to bear their own costs despite the general rule that costs follow the event
Although Section 27 of the Civil Procedure Act provides that costs follow the event, the court exercised discretion given that the parties are family - an uncle and his nephew - and encouraged reconciliation in the spirit of Article 45(1) of the Constitution.
Legal principles established
#- When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how he acquired the title
- A title acquired by fraud or misrepresentation is not protected under Section 26(1) of the Land Registration Act and may be cancelled under Section 80(1)
Court orders
#- 1.The Defendant's title to the land parcel No South Teso/Angoromo/7713 is cancelled and the same shall revert to the Plaintiff
- 2.The Defendant shall within 45 days surrender to the Land Registrar Busia the original title deed for cancellation and execute all relevant documents to facilitate issuance of a title deed in the name of the Plaintiff
- 3.In default, the Deputy Registrar shall execute all such documents on behalf of the Defendant
- 4.A permanent injunction restraining the Defendant, his servants or any other persons from interfering with the land parcel No South Teso/Angoromo/7713
- 5.Each party to meet their own costs
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over disputes relating to title to land; rectification sought under Sections 26 and 80 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ekulo v Makokha (Environment & Land Case 66 of 2019) [2024] KEELC 5309 (KLR)", Case Analysis (2024). Not stated in judgment (plaint dated 26th September 2019, filed 16th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5309/eng@2024-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.