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ELCPartially AllowedNot stated in judgment (plaint dated 26th September 2019, filed 16th October 2019)· [2024] KEELC 5309 (KLR)

Ekulo v Makokha (Environment & Land Case 66 of 2019) [2024] KEELC 5309 (KLR)

Environment and Land Court
17 July 2024
4,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, uncle to the Defendant, sued over land parcel No South Teso/Angoromo/7713 seeking cancellation of the Defendant's title, restoration of his own name on the register, a permanent injunction and costs. He alleged that in November 2008 the Defendant obtained his title deed and identity documents under the pretence of securing a bank loan, but fraudulently transferred the land to himself. The Defendant denied fraud, asserting he bought the land for Kshs.150,000 under a sale agreement dated 12th November 2008, upon subdivision of parcel No South Teso/Angoromo/6485. The court framed four issues: fraud, cancellation, injunction and costs. Scrutinising the sale agreement, the court noted it bore a signature purporting to be the Plaintiff's although his pleadings, verifying affidavit and identity card were all thumb-printed, and the advocate who drew it admitted he never signed it. The court concluded the Plaintiff never executed the agreement, which was a forgery, and that the Defendant's title, founded on it, could not stand. Applying Section 26(1) and Section 80(1) of the Land Registration Act and Article 40(6) of the Constitution, and citing Munyu Maina v Hiram Gathiha Maina, the court held the title was fraudulently acquired and not protected. It cancelled the Defendant's title, ordered reversion to the Plaintiff, directed surrender of the title deed within 45 days (with the Deputy Registrar to execute documents in default), and issued a permanent injunction. Although costs ordinarily follow the event, the court, noting the parties are family, ordered each party to bear their own costs and encouraged reconciliation.

Key legal issues

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01

Whether the transfer of the suit land to the Defendant was procured fraudulently

Holding

Yes - the sale agreement dated 12th November 2008 was not executed by the Plaintiff and was a forgery

Reasoning

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.

p. 6
02

Whether the Defendant's title should be cancelled and revert to the Plaintiff

Holding

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

Reasoning

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.

p. 7
03

Whether a permanent injunction should issue against the Defendant

Holding

Yes - it follows as a matter of course from cancellation of the title and reversion to the Plaintiff

Reasoning

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.

p. 7
04

Who shall bear the costs of the suit

Holding

Each party to bear their own costs despite the general rule that costs follow the event

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 3.In default, the Deputy Registrar shall execute all such documents on behalf of the Defendant
  4. 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. 5.Each party to meet their own costs

Authorities

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Legislation

  • Penal CodeSection 345
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)
  • Civil Procedure ActSection 27
  • Constitution of KenyaArticle 40(1) and 40(6)
  • Constitution of KenyaArticle 45(1)

Cases cited (5)

  • Munyu Maina -v- Hiram Gathiha Maina
    2013 eKLR
  • Davy -v- Garrett
    1878 7 Ch D 473
  • Koinange & 13 Others -v- Koinange
    1986 KLR 23
  • Kinyanjui Kamau -v- George Kamau
    2015 eKLR
  • Ndolo -v- Ndolo
    2008 I KLR (G & F) 742
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

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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, "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.