Harun (Practicing Law as Nelson Harun & Company Advocates) v Land Registrar, Kajiado North District & another; Perirose Limited (Interested Party) (Environment and Land Case 340 of 2017) [2024] KEELC 5906 (KLR)
The bottom line
#A Kajiado court dismissed a lawyer's land fraud claim and ordered him to refund his former client Kshs. 35.5 million he could not account for.
What this practically means
#Executive summary
#Key legal issues
#Ownership by the interested party
The interested party never owned the suit land: no written sale agreement, no proof of payment of purchase price, no transfer documents, stamp duty, valuation report or title deed.
The court enumerated the prerequisites of a valid land sale: a written contract, payment of purchase price, evidence of transmission, valid transfer forms, stamp duty and a valuation report, and a title deed in the purchaser's name. None was adduced for the interested party, so its claimed ownership failed.
Validity of the sale agreement between the 2nd defendant and the interested party
No valid sale agreement existed because transfer/registration preceded the agreement, which was irregular.
The 2nd defendant was registered as owner on 8/9/2011 while the sale agreement was dated 29/9/2011, three weeks after registration. The court held transfer before the sale agreement is irregular, and the agreement also failed to acknowledge that the transfer had already occurred.
Accounting by the plaintiff of monies received
The plaintiff did not account for the balance of Kshs. 35,530,000/- of the Kshs. 42 million received from the 2nd defendant.
The 2nd defendant proved payment of Kshs. 42 million by cheques and electronic transfer, and that only Kshs. 6,470,000/- reached the land owners. The plaintiff's claim of fees for prior work failed for want of a fees agreement, a certificate of taxation, or consent to offset fees against purchase monies.
Standard of proof of fraud and indefeasibility of title
The plaintiff proved no fraud; the 2nd defendant's registered title stands as prima facie and indefeasible under Section 26(1) of the Land Registration Act.
The 19 particulars of fraud were not proved to the heightened standard per Elizabeth Kamene Ndolo v George Matata Ndolo. The 2nd defendant's registration was regular, for valuable consideration, and the plaintiff did not rebut the statutory presumption of indefeasibility.
Legal principles established
#- Allegations of fraud must be proved to a standard higher than the balance of probabilities, though not beyond reasonable doubt.
- A registered proprietor's title is prima facie evidence of absolute and indefeasible ownership under Section 26(1) of the Land Registration Act.
- A contract for the sale of land must be in writing to be valid under Section 3 of the Law of Contract Act.
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the second defendant.
- 2.The 2nd defendant's counterclaim is allowed in terms of prayers (ii), (iii) and (iv)(d) of the defence and counterclaim dated 26/4/2017: Kshs. 35,530,000/-, interest of 18% per annum from the date of the last installment until full refund, and general/exemplary damages under prayer (iv)(d).
- 3.It is so ordered.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harun (Practicing Law as Nelson Harun & Company Advocates) v Land Registrar, Kajiado North District & another; Perirose Limited (Interested Party) (Environment and Land Case 340 of 2017) [2024] KEELC 5906 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5906/eng@2024-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.