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ELCAllowedELC NO. E006 OF 2023

Khamisi (Suing as the Legal Representative of the Estate of Juma Omari Mwendo) v Jiwan & 5 others (Environment & Land Case E006 of 2023) [2024] KEELC 6032 (KLR)

Environment and Land Court
17 September 2024
3,845 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled titles to Kwale land obtained through fraud, confirming that even registered titles built on illegal acquisitions get no protection.

What this practically means

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Executive summary

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The Plaintiff, suing as a beneficiary and legal representative of the estate of Juma Omari Mwendo, challenged the registration of parcel Kwale/Msambweni 'A'/2185 in the names of the 1st and 2nd Defendants. The adjudication record showed the deceased as the recorded allottee at demarcation, yet the register opened on 2/7/1979 named Zahir Habib Jiwan as first proprietor. The claim against the 3rd to 6th Defendants was withdrawn; the 1st and 2nd Defendants, served by substitution, did not enter appearance. The court held that even in an undefended suit the plaintiff must prove the claim on a balance of probabilities, and found the plaintiff had standing through a limited grant ad litem and family consent. Applying the Land Adjudication Act and Land Registration Act, the court found the deceased to be the original owner, that the deceased having died in March 1978 could not have transferred the land in 1979, and that the 1st Defendant's title was procured through fraud, illegality and irregularity. A fraudulent title passes no good title, so the subsequent transfer to the 2nd Defendant and the charge securing facilities from the 6th Defendant were null and void. Invoking sections 26 and 80 of the Land Registration Act, the Constitution's Article 40(6), and authorities including Dina Management and Athi Highway Developers, the court declared the titles and charge null and void, ordered the County Land Registrar Kwale to cancel and reconstruct the title and green card in the deceased's name, issued a permanent injunction, and awarded costs to the Plaintiff. Judgment was delivered virtually at Kwale on 17th September 2024 by A.E. Dena J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff is the rightful owner of the suit property
  2. 2.Whether the 1st and 2nd Defendants lawfully procured their titles to the suit property
  3. 3.Whether the Plaintiff is entitled to the reliefs sought in the Amended Plaint

Key legal issues

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01

Whether the deceased was the original allottee of the suit property at adjudication

Holding

Yes. The adjudication record showed Juma Umari Mwendo as recorded owner of plot 2185 at demarcation, so he is recognised as the original owner.

Reasoning

The court perused a certified search from the Land Adjudication and Settlement Office showing the plot recorded in the deceased's name in the demarcation books. Under section 23 of the Land Adjudication Act, a person exercising ownership rights under customary law is determined the owner. Absent any evidence of objection or appeal changing the record, the deceased should have been the first registered owner; entry No. 1 of 2/7/79 naming Zahir Habib Jiwan was therefore irregular.

p. 4
02

Whether the 1st and 2nd Defendants' titles were fraudulently procured

Holding

Yes. The deceased died in March 1978 yet the register was opened in July 1979 in favour of a stranger not in the family tree, evidencing fraud and illegality.

Reasoning

Fraud must be specifically pleaded and proved to a standard slightly above balance of probabilities. The deceased could not have transferred land in 1979 having died in 1978, and the first registered owner was unrelated. Following Kogo Flats Ltd v Sammy Cherunya, unexplained gaps in the acquisition process taint the title, and the holder need not have participated in the fraud. The transfer and charge founded on the defective title were nullities.

p. 5
03

Whether the Plaintiff is entitled to rectification of the register and other reliefs

Holding

Yes. Under section 80(1) of the Land Registration Act the court ordered rectification, cancellation of titles and the charge, and a permanent injunction.

Reasoning

Section 26(1) protection of indefeasible title does not extend to titles acquired illegally, unprocedurally or through a corrupt scheme, and Article 40(6) does not protect unlawfully acquired property. The court, guided by Dina Management and Athi Highway Developers, held the impeached titles undeserving of protection and granted all the reliefs sought, including costs under section 27 of the Civil Procedure Act.

p. 7

Legal principles established

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  • In an undefended suit the plaintiff must still adduce credible evidence proving the claim on a balance of probabilities
  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected under section 26 of the Land Registration Act and Article 40 of the Constitution
  • The court may order rectification of the register where a registration was obtained by fraud or mistake
  • A fraudulent or fake title confers no title capable of passing to a subsequent transferee

Court orders

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  1. 1.A declaration that the land Kwale/Msambweni 'A'/2185 belongs to Juma Omar Mwendo
  2. 2.A declaration that the 1st and the 2nd Defendants procured the land Kwale/Msambweni 'A'/2185 through fraud, illegal and corrupt schemes thus the title deed is null and void
  3. 3.An order directing the County Land Registrar Kwale to recall, cancel and revoke the title deed in possession of the 2nd Defendant and re-issue another title for the parcel Kwale/Msambweni 'A'/2185 in the names of Juma Omari Mwendo
  4. 4.That the Kwale Land Registrar do delete, revoke and cancel green card for the parcel of land Kwale/Msambweni 'A'/2185 in the name of the 1st 2nd and 6th Defendants and reconstruct another green card in the name of its rightful owner Juma Omari Mwando
  5. 5.A declaration that the charge against the parcel of land Kwale/Msambweni 'A'/2185 is irregular, null and void
  6. 6.An order of permanent injunction restraining the Defendants, their agents, servants, nominees, employees from entering, being upon, using, remaining or developing or in any way interfering with the parcel of land Kwale/Msambweni 'A'/2185
  7. 7.Costs are awarded to the Plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 80 and 26 of the Land Registration Act; Article 40 of the Constitution as discussed in Dina Management Limited v County Government of Mombasa

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A nullity is nullity and nothing valid can come out of it.
p. 6Effect of fraudulently acquired title
Judgement is hereby entered for the Plaintifi against the said Defendants. The following orders hereby issue;
p. 7Disposition
A declaration that the land Kwale/Msambweni 'A'/2185 belongs to Juma Omar Mwendo
p. 5Final orders - declaration of ownership
Costs are awarded to the Plaintifi
p. 7Costs
The process of acquisition of a title is as good as the end result which is the title document.
p. 5Irregular title acquisition (Kogo Flats dictum adopted)
the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.
p. 7Statutory power of rectification

Issues in the judgment

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minor

Internal inconsistency in attribution of fraud particulars - the court says particulars are in paragraph 4 of the Amended Plaint while the Plaint itself states they are in paragraph 14

minor

Internal contradiction describing the 1st Defendant's registration as both procedural and illegal in the same paragraph

minor

Judgment refers to withdrawal of suit against the 3rd, 4th, 5th and 6th Defendants yet the final orders bind the 6th Defendant's charge

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, "Khamisi (Suing as the Legal Representative of the Estate of Juma Omari Mwendo) v Jiwan & 5 others (Environment & Land Case E006 of 2023) [2024] KEELC 6032 (KLR)", Case Analysis (2024). ELC NO. E006 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6032/eng@2024-09-17

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