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ELCPartially AllowedNot stated in the excerpt of the judgment provided· [2024] KEELC 6100 (KLR)

Safari v Kenya Commercial Bank Limited & another (Environment & Land Case 28 of 2022) [2024] KEELC 6100 (KLR)

Environment and Land Court
26 September 2024
1,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled KCB's title to disputed Mombasa land, holding that a title obtained while the land was under litigation is fraudulent and void.

What this practically means

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Executive summary

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The plaintiff sued the Kenya Commercial Bank Limited (1st defendant) and Serah Kalume Kitsaumbi (2nd defendant), claiming to be the legal and beneficial owner of Subdivision No. 6938/III/MN (CR 60145) by virtue of adverse possession, as confirmed by the judgment of Hon. Francis Kyambia, Chief Magistrate, in Mombasa CMCC No. 136 of 2013 delivered on 18th December 2020. She complained that during the pendency of that suit the 2nd defendant sold and transferred the suit property to the 1st defendant in disregard of her rights, and that the defendants had entered the property and demolished improvements in an attempt to gain possession. The 1st defendant relied on its registered title acquired through a sale agreement of 7th March 2012 and registration on 12th June 2013, contending it was not party to the magistrate's court suit and could not be bound by it. The court found that the 2nd defendant prosecuted the magistrate's court suit while simultaneously transferring and registering the property in the 1st defendant's name - a calculated scheme to defeat the plaintiff's claim - and that the 1st defendant failed to make conclusive investigations on the title. The bank's title was held tainted with fraud, deceit and nullity, outside the protection of indefeasibility and vitiated under Section 80 of the Land Registration Act. Neither defendant having appealed the earlier judgment or filed a counterclaim, the plaintiff's claim succeeded on a balance of probabilities. The court cancelled the bank's registration, ordered registration of the plaintiff as proprietor, issued a permanent injunction against the defendants, and awarded Kshs. 500,000/= nominal general damages with interest, but declined compensation for the demolition itself for want of proof of value. Costs were awarded to the plaintiff jointly and severally against the defendants.

Key legal issues

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01

Whether the 1st defendant's registered title is protected by indefeasibility notwithstanding the prior judgment in favour of the plaintiff

Holding

The title is not protected; it is tainted with fraud, deceit and nullity because it was procured through a corrupt scheme of transferring and registering the suit property while it was under litigation, to defeat the plaintiff's claim

Reasoning

The court found that the 2nd defendant instituted the magistrate's court suit while simultaneously transacting the sale and transfer of the suit property to the 1st defendant, a calculated move to defeat the plaintiff's claim. The 1st bank failed to make conclusive investigations, never questioning the vendor about the ongoing suit. The resulting title was therefore rooted in deception, fell within the vitiating scheme of Section 80 of the Land Registration Act, and could not enjoy indefeasibility.

p. 3
02

Whether the plaintiff was entitled to damages for demolition of and denial of use of the suit property

Holding

Partly. No special damages for the demolition were proved, but the plaintiff was awarded nominal general damages of Kshs. 500,000/= for the denial of use of the suit property since the judgment in her favour on 18th December 2020

Reasoning

The plaintiff prayed for compensation for the demolition but did not demonstrate the exact value of the property before and after the demolition. The court nevertheless held she was entitled to compensation for the denial of use of the suit property from the date of the earlier judgment in her favour, awarding Kshs. 500,000/= as nominal general damages with interest at court rates from the date of judgment until payment in full.

p. 3
03

Whether the defendants could collaterally challenge the judgment in Mombasa CMCC No. 136 of 2013

Holding

They could not. Neither defendant appealed against that judgment nor sought to be enjoined to challenge it, and neither filed a counterclaim in the present suit

Reasoning

The court noted that the 2nd defendant never appealed against Hon. Kyambia's judgment and the 1st defendant never sought joinder to challenge it. With no counterclaim filed, the court's mandate was tied to the issues raised in the pleadings and evidence before it; it could not pronounce itself on issues not properly laid before it, leaving the plaintiff's acquired title intact.

p. 3

Legal principles established

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  • A title founded on fraud is null and void and cannot be protected by the sanctity of indefeasibility of title under the Land Registration Act
  • Any title founded on irregularity, unprocedural conduct or a corrupt scheme stands vitiated under Section 80 of the Land Registration Act
  • A court's mandate is confined to the issues raised in the pleadings and evidence before it; it cannot confer relief on issues not properly laid before it
  • A party who transfers and registers suit property while it is under litigation, to defeat a claimant's rights, acquires a title tainted with nullity

Court orders

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  1. 1.An order compelling the Land Registrar, Kilifi to cancel entry No. 6 on the Certificate of Title No. CR 60145 L.R. 6938/III/MN dated 12th June 2013 in the name of Kenya Commercial Bank Limited
  2. 2.An order compelling the Land Registrar, Kilifi to register Mary Mukabadege Safari as the registered proprietor of Land Parcel No L.R. 6938/III/MN CR 60145
  3. 3.A permanent injunction against the defendants, their servants, agents, employees or anyone authorized by them from continuing to occupy L.R. 6938/III/MN CR 60145
  4. 4.General damages of Kshs. 500,000/= plus interest at court rates from the date of judgment until payment in full
  5. 5.Costs of the suit awarded to the plaintiff, to be borne by the defendants jointly and severally

Authorities

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Legislation

  • Land Registration ActSection 80
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (question of title to land), the plaint claiming declaration of ownership, cancellation of entry, injunction and damages

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, "Safari v Kenya Commercial Bank Limited & another (Environment & Land Case 28 of 2022) [2024] KEELC 6100 (KLR)", Case Analysis (2024). Not stated in the excerpt of the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6100/eng@2024-09-26

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