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)
The bottom line
#The Environment and Land Court cancelled fraudulently registered leases in Nairobi, returning the land title to the original owners.
What this practically means
#Executive summary
#Key legal issues
#Res judicata in relation to ELC Petition 449 of 2013
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
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.
Whether the registration of the leases was fraudulent
Yes - the leases presented for registration were materially altered versions of those executed by the parties, and registration was procured by fraud and misrepresentation
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.
3rd Defendant's counterclaim for specific performance
Dismissed in its entirety; the 3rd Defendant, having unclean hands from procuring registration of altered leases, cannot obtain the equitable remedy
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.
Legal principles established
#- 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
#- 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.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.The 2nd, 3rd and 4th Defendants shall bear the costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land registered under the retired Registration of Titles Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.