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ELCPartially AllowedNot stated in the extract (Nairobi ELC suit)· [2024] KEELC 6227 (KLR)

Githongo (Suing on Behalf of the Estate of the Late Joseph Muiruri Githongo - Deceased) & another v Chief Land Registrar & 3 others (Environment & Land Case 223 of 2016) [2024] KEELC 6227 (KLR)

Environment and Land Court
26 September 2024
12,137 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~49 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court cancelled fraudulently registered leases in Nairobi, returning the land title to the original owners.

What this practically means

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Executive summary

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The Plaintiffs, Joseph and Mary Githongo, sued the Chief Land Registrar, Allan Duncan, other purchasers and their advocates, seeking a declaration that the registration of leases over L.R 1160/281 on 16th March 2012 was procured by fraud, cancellation of those leases, rectification of the register, a permanent injunction and general damages. The Defendants raised res judicata, relying on ELC Petition 449 of 2013 (Gacheru J, 12th June 2015), in which the Registrar's cancellation of the leases had been declared void for want of due process under Section 60 of the Registration of Titles Act. The court held that the earlier petition only dealt with the legality of the cancellation and never interrogated the fraud allegations, so this suit was not res judicata. On the evidence, including two sets of materially different leases and a registry note dated 25th October 2011 directing amendment to read 'villas', the court found on a balance of probabilities that the altered leases were the ones presented and registered, and that the registration was procured by fraud and misrepresentation. The court further held that the Plaintiffs' communication of discharge withdrew consent to registration, and that the 3rd Defendant, having unclean hands, could not obtain specific performance; its counterclaim failed in its entirety. The prayer for general damages failed for want of quantification and evidence. The court declared the registrations null and void, ordered the 1st Defendant to cancel the leases and rectify the register in the Plaintiffs' names as joint proprietors, and awarded costs against the 2nd, 3rd and 4th Defendants.

Key legal issues

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01

Res judicata in relation to ELC Petition 449 of 2013

Holding

The suit is not res judicata; the earlier petition only determined the legality of the Registrar's cancellation under Section 60 of the RTA, not the question of fraud in the registration

Reasoning

Applying the test in John Florence Maritime Services, the court compared the two suits. The earlier petition, brought by Allan Duncan against the Registrar and Attorney General, solely concerned the Registrar's power to cancel leases without summons. Fraud allegations were before that court but were never interrogated. The parties also do not litigate under the same title, and the 3rd and 4th Defendants were not parties to the earlier suit.

p. 14
02

Whether the registration of the leases was fraudulent

Holding

Yes - the leases presented for registration were materially altered versions of those executed by the parties, and registration was procured by fraud and misrepresentation

Reasoning

The court compared two sets of leases: the executed leases and altered leases (replacing 'portion' with 'Villa', inserting architectural plans, altering plot references and omitting price). The Land Registrar produced no lease copies but the registration application bore a 25th October 2011 note directing amendment to read 'villas'. The leases registered on 16th March 2012 despite initial rejection showed the altered leases were presented. The letter of 28th October 2011 terminating the transaction withdrew consent to registration.

p. 19
03

3rd Defendant's counterclaim for specific performance

Holding

Dismissed in its entirety; the 3rd Defendant, having unclean hands from procuring registration of altered leases, cannot obtain the equitable remedy

Reasoning

Specific performance is discretionary and requires a valid enforceable contract and a party ready and willing to perform. Once the Plaintiffs communicated discharge, there was no meeting of minds; the proper course for the 3rd Defendant was to challenge the rescission in court. Instead it unilaterally registered altered leases, disqualifying it from equitable relief. The other counterclaim prayers fell with the claim for specific performance.

p. 20

Legal principles established

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  • Fraud must be specifically pleaded and distinctly proved to a standard above balance of probabilities but below beyond reasonable doubt
  • Registration of leases procured by fraud and misrepresentation is null and void and amenable to cancellation under Section 64 of the repealed Registration of Titles Act
  • Communication of discharge of a contract withdraws consent to registration of a varied lease; a party may not unilaterally procure registration of altered leases
  • Specific performance is unavailable to a party with unclean hands

Court orders

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  1. 1.A declaration that the registration of the leases registered on L.R No 1160/281 on 16th March 2012 are null and void
  2. 2.An order directing the 1st Defendant to cancel the registration of the leases entered on 16th March 2012 on L.R No 1160/281 and rectify the register and title to reflect the name of the Plaintiffs as the joint proprietors
  3. 3.The 2nd, 3rd and 4th Defendants shall bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7 (with Explanations 1-6)
  • Evidence ActSections 107, 109 and 112
  • Land Registration ActSection 26 (as cited by Plaintiffs' counsel); Section 107
  • Registration of Titles Act (repealed)Sections 23(1), 33, 60 and 64

Cases cited (25)

  • Dina Management Limited vs County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)
  • Housing Finance Co. of Kenya Limited vs Gilbert Kibe Njuguna
    Nairobi HCCC No. 1601 of 1999
  • Nicolene Ltd vs Simmonds
    [1953] 1 QB 543
  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Kenya Hotel Properties Ltd vs Attorney General & 5 Others
    [2022] eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Charles Mwirigi Miriti vs Thananga Tea Growers Sacco Ltd & another
    [2014] eKLR
  • National Bank of Kenya Ltd vs Pipe Plastic Samkolit (K) Ltd & Anor
    [2001] eKLR
  • Pius Kimaiyo Langat vs Co-operative Bank of Kenya Ltd
    [2017] eKLR
  • Independent Electoral and Boundaries Commission & Anor vs Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • South Nyanza Sugar Company Ltd vs Margaret A Ogola
    [2019] eKLR
  • Housing Company of East Africa Limited vs Board of Trustees National Social Security Fund & 2 Others
    [2018] eKLR
  • John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others
    (Petition 17 of 2015) [2021] KESC 39 (KLR)
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    (2010) eKLR
  • Mumbi M'Nabea vs David M. Wachira
    [2016] eKLR
  • Maria Ciabaitaru M'mairanyi & Others v. Blue Shield Insurance Company Limited
    Civil Appeal No. 101 of 2000 [2005] 1 EA 280
  • Charles Karaathe Kiarie & 2 Others -vs- Administrators of Estate of John Wallace Mathare (deceased) & 5 others
    [2013] eKLR
  • Kuria Kiarie & 2 Others vs Sammy Magera
    [2018] eKLR
  • Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the Estate of Sospeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia
    [2020] eKLR
  • Reliable Electrical Engineers Ltd vs Mantrac Kenya Limited
    [2006] eKLR
  • Gurdev Singh Birdi & Narinder Singh Ghatora as Trustees of Ramgharia Institute of Mombasa vs Abubakar Madhubuti
    [1997] eKLR
  • Thrift Homes Ltd vs Kenya Investment Ltd
    [2015] eKLR
  • Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd
    [1992] KLR 177
  • Henderson v Henderson
    (1843) 67 ER 313
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land registered under the retired Registration of Titles Act

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, "Githongo (Suing on Behalf of the Estate of the Late Joseph Muiruri Githongo - Deceased) & another v Chief Land Registrar & 3 others (Environment & Land Case 223 of 2016) [2024] KEELC 6227 (KLR)", Case Analysis (2024). Not stated in the extract (Nairobi ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6227/eng@2024-09-26

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