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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 5339 (KLR)

Kiruri v Land Registrar, Kajiado & another (Environment & Land Case E035 of 2023) [2024] KEELC 5339 (KLR)

Environment and Land Court
11 July 2024
LKL. Komingoi
1,001 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a fraudulently acquired Kajiado land title, restoring it to a deceased owner's estate and ordering the fraudster to pay costs.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of the late John Kiruri Ngugi, sued the Land Registrar Kajiado and a second defendant seeking rectification of the register for Kajiado/Kisaju/517 by cancellation of entries 5 to 10 in the green card and restoration of the registration to the deceased. The plaintiff contended that the 2nd Defendant had fraudulently falsified registry records to register himself as owner, and relied on the 2nd Defendant's conviction on 18th February 2021 in Criminal Case No. 2103 of 2015 for six offences including obtaining registration of land by false pretence, forgery of title to land and fraudulent alteration of land documents. The 1st Defendant filed a defence seeking dismissal but tendered no evidence; the 2nd Defendant did not enter appearance. The court framed two issues: whether the 1st Defendant should be compelled to rectify entries 5 to 10, and costs. Relying on Section 80 of the Land Registration Act and applying Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka, the court held that although the plaintiff's evidence was uncontroverted it met the balance-of-probability standard, and that a title founded on proven fraud, forgery and falsification stands vitiated. Judgment was entered for the plaintiff: the Land Registrar Kajiado was ordered to cancel entries 5 to 10 and rectify the register to reflect the late John Kiruri Ngugi as rightful owner, with costs of the suit borne by the 2nd Defendant. Judgment was delivered virtually at Kajiado on 11th July 2024 by L. Komingoi J.

Key legal issues

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01

Rectification of register founded on fraud

Holding

A title obtained through fraud, forgery and falsification of land documents is vitiated and the court may order its cancellation and rectification of the register in favour of the rightful owner.

Reasoning

The 2nd Defendant was convicted in Criminal Case No. 2103 of 2015 of offences including obtaining registration of land by false pretence, forgery of title to land and fraudulently altering land documents relating to Kajiado/Kisaju/517. The judgment in that criminal case was produced in evidence. On that basis the title acquired was founded on illegality, engaging Section 80(1) of the Land Registration Act, which permits the court to direct cancellation or amendment of a fraudulent registration.

p. 2
02

Standard of proof on uncontroverted evidence

Holding

Even where evidence is uncontroverted, the plaintiff must prove the case on a balance of probability.

Reasoning

The 1st Defendant tendered no evidence and the 2nd Defendant neither entered appearance nor filed a defence, leaving the plaintiff's evidence uncontroverted. The court nonetheless invoked Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another to emphasise that uncontroverted evidence must be interrogated and must still meet the balance-of-probability standard before judgment is entered.

p. 2

Legal principles established

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  • A court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake, under Section 80 of the Land Registration Act.
  • Uncontroverted evidence must still be proved to the standard of balance of probability; a plaintiff must prove its case whether or not the evidence is challenged.

Court orders

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  1. 1.The Land Registrar Kajiado is hereby ordered to cancel entries 5 to 10 in relation to Kajiado/Kisaju/517 and rectify the register to reflect the name of the late John Kiruri Ngugi as the rightful owner
  2. 2.Costs of the suit shall be borne by the 2nd Defendant

Authorities

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Legislation

  • Penal CodeSections 320, 347(a), 357(a), 350
  • Land Registration ActSections 80(1), 103(1)(d)

Cases cited (3)

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Margaret Wambui Mwangi v Chief Land Registrar, Kajiado
    [2019] eKLR
  • Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another
    [2016] eKLR
Jurisdiction invoked
Section 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, "Kiruri v Land Registrar, Kajiado & another (Environment & Land Case E035 of 2023) [2024] KEELC 5339 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5339/eng@2024-07-11

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