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ELCPartially Allowed· [2024] KEELC 5906 (KLR)

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)

Environment and Land Court
17 September 2024
3,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, an advocate, sued the Land Registrar and his former client, the 2nd defendant, seeking declarations that a parallel title deed and subsequent subdivision of L.R. Kajiado/Loodariak/411 were fraudulent and corrupt, rectification of the register, injunctions and damages. He alleged the 2nd defendant procured the parallel title while he held the original title in custody. The 1st defendant did not appear. The 2nd defendant filed an amended defence and counterclaim, contending she paid the plaintiff Kshs. 42 million as full purchase price, that the plaintiff defrauded her by inflating the price and withholding monies from the sellers, and she claimed Kshs. 35,530,000/- with interest and damages. The court framed three issues: ownership by the interested party, validity of the sale agreement, and accounting by the plaintiff. It found the interested party never owned the land for want of a written agreement, proof of payment, transfer documents and title; that the sale agreement dated three weeks after registration was irregular; and that the plaintiff failed to account for Kshs. 35,530,000/-. The plaintiff's 19 particulars of fraud failed against the heightened standard of proof per Elizabeth Kamene Ndolo v George Matata Ndolo, and the 2nd defendant's registered title was prima facie and indefeasible under Section 26(1) of the Land Registration Act. The plaintiff's suit was dismissed with costs; the counterclaim was allowed in terms of prayers (ii), (iii) and (iv)(d).

Key legal issues

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01

Ownership by the interested party

Holding

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.

Reasoning

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.

p. 5
02

Validity of the sale agreement between the 2nd defendant and the interested party

Holding

No valid sale agreement existed because transfer/registration preceded the agreement, which was irregular.

Reasoning

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.

p. 6
03

Accounting by the plaintiff of monies received

Holding

The plaintiff did not account for the balance of Kshs. 35,530,000/- of the Kshs. 42 million received from the 2nd defendant.

Reasoning

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.

p. 6
04

Standard of proof of fraud and indefeasibility of title

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The plaintiff's suit is dismissed with costs to the second defendant.
  2. 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. 3.It is so ordered.

Authorities

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Legislation

  • Land ActSection 158
  • Law of Contract ActSection 3
  • Land Registration Act (Cap 300 of 2012)Section 26(1)

Cases cited (1)

  • Elizabeth Kamene Ndolo v George Matata Ndolo
    Civil Appeal No. 128 of 1995
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the judgment)

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, "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.