Kihiumwiri Farmers Company Limited v Kungu & 9 others (Environment & Land Case 2 of 2020) [2024] KEELC 6168 (KLR)
The bottom line
#The Environment and Land Court in Murang'a confirmed that only a court order, not a Registrar's notice, can cancel a registered land title in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Authority of PW1 to institute the suit on behalf of the company
PW1, though not producing a board resolution, was recognized as Chairman of the Plaintiff in prior judicial proceedings and possesses the necessary legal capacity to sue for the company.
No evidence of a board resolution or of PW1's position was tendered, but the court took judicial notice of prior proceedings (Republic v Joseph Thiongo Waweru and Kihiu Mwiri Farmers Co. Ltd v Breeze Investments) in which PW1 testified and was allowed to sue as Chairman/Director. Courts should not be inconsistent; the court declined to depart from that recognition and found PW1 neither an imposter nor a busybody.
Whether the Plaintiff is a non-existent entity lacking capacity to sue
The Plaintiff exists and is capable of suing and being sued; the Defendants failed to discharge the burden of proving non-existence.
Both sides tendered evidence of registration (Certificate of Incorporation and CR12). The Gazette Notice of 1st April 2016 did not show the company had ceased to exist or was in winding up. Applying the rule that he who alleges must prove, the Defendants' failure to call sufficient evidence meant the allegation remained unproved.
Whether the Plaintiff is the registered owner of the suit land
Yes - the Plaintiff holds an indefeasible title to LR No. 13866/29 and the Defendants failed to establish any nexus between it and Haverest Land Investments Limited or prove they purchased from the Plaintiff.
The Plaintiff produced a Certificate of Title under the Registration of Title Act (Cap 281, repealed), now mirrored in Sections 24 and 26(1) of the Land Registration Act, 2012 conferring absolute and indefeasible ownership. The Defendants alleged bulk sale through Haverest but produced no contract evidencing the nexus; documents produced were unsigned, of unproven identity of maker, and showed double conveyancing of the same plot to two buyers.
Lawfulness of the cancellation of the Plaintiff's title by Gazette Notice of 1st April 2016
The cancellation was unlawful and in excess of the Registrar's powers under Section 79(2) of the Land Registration Act.
Relying on Super Nova Properties, Republic v Kisumu District Lands Officer, Harrison Kiambuthi Wanjiru and Lawrence Muriithi Mbabu, the court held that only a court of law may cancel a title on grounds of fraud or illegality; the Registrar's power is limited to rectification of errors not materially affecting a registered proprietor's rights.
Merits of the 2nd Defendant's Counter-claim
Dismissed in its entirety for want of proof on a balance of probabilities; the Certificates of Ownership are unofficial private documents of no legal value.
The 2nd Defendant admitted he produced no evidence linking the Plaintiff to Haverest Company Limited. Applying adverse-inference principles (Kenya Akiba Micro Financing; David Katana Ngomba), his avoidance of joining Haverest permitted the inference that the evidence would have been adverse to him. The Certificates of Ownership enjoyed no protection under Sections 24 and 26(1) of the Land Registration Act.
Legal principles established
#- A Registrar of Lands has no power to cancel a registered title save under an express order of the Court; such cancellation is unlawful and in excess of the powers conferred under Section 79(2) of the Land Registration Act.
- He who alleges must prove; a party alleging a contract between the registered proprietor and a third-party vendor must call sufficient evidence to prove it, failing which the allegation remains mere allegation insufficient to controvert the registered owner's evidence.
- Where a party fails to join a critical witness, the court may draw an adverse inference that the witness's evidence would have been adverse to that party.
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendants jointly and severally as claimed in prayers No (1) and (2) of the Plaint dated 17th January, 2020 (eviction of the Defendants from the suit property and a permanent injunction restraining them, their servants and/or agents)
- 2.Dismissal of the 2nd Defendant's Counter-claim in its entirety with costs to the Plaintiff
- 3.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (implied by the court's subject matter over land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihiumwiri Farmers Company Limited v Kungu & 9 others (Environment & Land Case 2 of 2020) [2024] KEELC 6168 (KLR)", Case Analysis (2024). Environment & Land Case (Murang'a) - Plaint dated 17th January, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6168/eng@2024-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.