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ELCPartially AllowedEnvironment & Land Case E023 of 2021· [2024] KEELC 5865 (KLR)

Peter Gichuhi Wainaina v Jane Waithera Kiguru & another

Environment and Land Court
10 September 2024
10,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court cancelled a Murang'a land title bought during an ongoing court case, ruling the first original allottee keeps the land.

What this practically means

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Executive summary

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The Plaintiff, a member of the 2nd Defendant cooperative society, claimed he balloted for and was allotted Plot No. 26B in 1988 (later LR Mitubiri/Wempa/Block 2/2670), took possession, but discovered in 2010 that the plot had been transferred to the 1st Defendant. A prior Cooperative Tribunal case found him a member and the rightful owner but declined to cancel the title for lack of jurisdiction. An ex parte judgment of 28th July 2022 was set aside and the 1st Defendant filed a defence, asserting she purchased the land in 2010 from Josphat Kibe Nyoike, who had bought it from original allottee Joseph Mwangi Kamau, and held title issued on 8th December 2011. The court framed three issues: legal ownership, cancellation of title, and costs. Tracing the root of both competing titles, the court found the Plaintiff's documents more authentic, corroborated by a Liquidator's Status Report confirming former management committee members acknowledged his ownership, and a Ministry of Cooperatives letter confirming his membership. The 1st Defendant failed to prove the original owner's membership, did not produce the Power of Attorney or sale agreement, and her documents bore numerous unexplained cancellations. Critically, she acquired title during the active prosecution of the Tribunal case, offending lis pendens and negativing good faith. Holding the Plaintiff was the first allottee (first in time), the court cancelled the 1st Defendant's title under section 80(1) of the Land Registration Act and ordered the register rectified in the Plaintiff's name. Judgment was entered in terms of prayers 1, 2 and 4; general damages were refused for want of evidence. Costs were awarded to the Plaintiff.

Key legal issues

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01

Who is the legal owner of the suit property?

Holding

The Plaintiff is the rightful owner; his root of title from balloting in 1988 was traced, corroborated by the Liquidator's Status Report and the Ministry of Cooperatives letter, while the 1st Defendant's documents were riddled with cancellations and unverified.

Reasoning

The court traced the root of both competing titles. The Plaintiff's receipts, share certificate No. 2616 and ballot were found more authentic; former management committee members and the Liquidators confirmed his ownership. The 1st Defendant failed to prove the original owner's membership, produced no Power of Attorney for her father's transactions, and did not avail herself to the Liquidators. Her documents bore numerous cancellations unexplained by independent evidence.

p. 15
02

Whether the title issued to the 1st Defendant should be cancelled

Holding

Yes. The title was acquired during the pendency of the Cooperative Tribunal case, offending lis pendens, was not acquired in good faith, and its root was suspect; it was impeachable under section 26(1) LRA and rectifiable under section 80(1).

Reasoning

The title deed was issued on 8th December 2011 while Cooperative Tribunal Case No. 452 of 2011 claiming ownership was active. Acquisition during pending litigation breached the doctrine of lis pendens and negatived bona fides. The court found the Plaintiff was the first allottee (first in time) and, applying section 80(1) of the Land Registration Act (mirroring section 143(1) of the repealed Registered Land Act), ordered cancellation and rectification.

p. 16
03

Whether general damages were payable

Holding

No; general damages not awarded as no evidence supported the claim.

Reasoning

The Plaintiff sought general damages in prayer 3 but adduced no evidence of any loss to justify an award. The court granted only declaratory, cancellation/rectification and costs reliefs.

p. 18
04

Costs of the suit

Holding

Costs follow the event; the successful Plaintiff is entitled to costs.

Reasoning

Section 27 of the Civil Procedure Act gives the court discretion, but costs ordinarily follow the event absent exceptional circumstances. The Plaintiff was the successful litigant and no exceptional circumstances existed.

p. 18

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be impeached on proof of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme under section 26(1)(a) and (b) of the Land Registration Act.
  • The doctrine of lis pendens remains applicable in Kenya under common law following repeal of the ITPA, and acquiring title over suit property during active prosecution of a case claiming that property offends the doctrine.
  • Where two competing titles over the same land are claimed, the court must trace the root of each title and uphold the one that conforms to procedure and traces its root without a break.
  • Where two equities are equal, the first in time prevails; the first allottee prevails in cases of double allocation.
  • A registered proprietor whose root of title is under challenge must prove the legality of the acquisition beyond merely producing the title instrument.

Court orders

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  1. 1.A declaration that the former Plot No. 26B, later LR Mitubiri/Wempa/Block 2/2670, validly belongs to the Plaintiff (prayer 1)
  2. 2.Cancellation of the certificate of title issued to the 1st Defendant over LR Mitubiri/Wempa/Block 2/2670 and rectification of the register with the land registered in the Plaintiff's name (prayer 2)
  3. 3.Judgment entered for the Plaintiff against the Defendants jointly and severally in terms of prayers 1, 2 and 4 of the Plaint dated 6th July 2021
  4. 4.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) & (b)
  • Land Registration ActSections 24, 25(1), 80(1)
  • Land Registration ActSection 107(1)
  • Registered Land Act Cap 300 (repealed)Sections 27, 28, 143(1)
  • Evidence Act Cap 80Sections 107, 108, 109
  • Civil Procedure ActSection 27(1)
  • Civil Procedure RulesOrder 2 rule 4
  • Statute of Limitations ActSection 7

Cases cited (23)

  • Shaneebal Limited vs County Government of Machakos [2018]
    [2018]
  • Karuru Munyororo vs Joseph Ndumia Murage & Another, Nyeri HCC No.95 of 1988
    Nyeri HCC No.95 of 1988
  • Alice Chemutai Too -vs- Nickson Kipkurui Korir & 2 Others
    (2015) eKLR
  • Popwa Company ltd vs Justus Nyamu Gatondo & Another
    (2020) eKLR
  • Willy Kipsongok Morogo v. Albert K. Morogo
    (2017) eKLR
  • Joseph N.K. Arap Ng'ok V Moijo Ole Keiwua & 4 Others
    [1997] eKLR
  • Arthi Highway Developers Limited Vs. West End Butchery Limited and Others
    Civil Appeal No. 246 of 2013
  • Africanus Osakaise Eprong & another v John Oroni Ikapasa
    [2022] eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Kimanthi Kilonzo v Susan Wangari Kiiru & another
    [2019] eKLR
  • R.G. Patel versus Lalji Makanji
    (1957) EA 314
  • Miller v Minister of Pensions
    [1942] 2 ALL ER 372
  • Elijah Makeri Nyangwara –vs- Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Marete v Ndegwa & 2 others
    Civil Appeal E042 of 2021 [2024] KECA 545 (KLR)
  • Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another
    [2015] eKLR
  • Co-operative Bank of Kenya Limited vs. Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Hebert L. Martin & 2 others vs Margaret J. Kamar & 5 others
    (2016) eKLR
  • Gitwany Investment Limited vs Tajmal limited & Others
    (2006) eKLR
  • Wreck Motors Enterprises vs. Commissioner of Lands
    C.A. No. 71/1997 (unreported)
  • Faraj Maharus vs. J.B. Martin Glass Industries and 3 others
    C.A 130/2003 (unreported)
  • M'Ikiara M'rinkanya & Another vs Gilbert Kabeere M'binjiwe
    (1982-1988) 1 KAR 196
  • Munyu Maina v Hiram Gathiha Maina
    COA Civil Appeal No. 239 of 2009
  • Morgan Air Cargo Limited v Everest Enterprises Limited
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction over land ownership and rectification of register under the Land Registration Act and Civil Procedure 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, "Peter Gichuhi Wainaina v Jane Waithera Kiguru & another", Case Analysis (2024). Environment & Land Case E023 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5865/eng@2024-09-10

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