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ELCPartially AllowedNot stated in the judgment (Busia Environment and Land Court suit)· [2024] KEELC 6347 (KLR)

Okwako (substituted by Charles Ajuma Obango) v Makokha (Environment & Land Case 99 of 2017) [2024] KEELC 6347 (KLR)

Environment and Land Court
1 October 2024
BOBOAZ N. OLAO
6,320 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title obtained through fraud, but let the buyer keep one acre he genuinely paid for.

What this practically means

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Executive summary

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The suit land, parcel NO Bukhayo/Matayos/1340, was first registered on 4th December 1985 in the name of Apulunary Makokha Okwako, who died on 28th April 2016. His nephew Barasa Obango Okwako, suing as legal representative under a limited grant in Succession Cause No 8 of 2017, filed suit in May 2017 alleging the defendant had fraudulently transferred the entire parcel to himself in 2009. After Barasa's death, Charles Ajuma Obango was substituted as plaintiff. The plaintiff sought cancellation of the register entries, reinstatement of the title, a declaration of ownership in trust, eviction and injunction, pleading particulars of fraud including theft of Apulunary's identity card and title deed, forgery of transfer documents and taking advantage of Apulunary's blindness. The defendant denied fraud, asserting he purchased the whole parcel for Kshs.280,000 through an agreement witnessed by an advocate, though the register recorded a consideration of Kshs.250,000. The trial, which spanned the tenures of Kaniaru J, Omollo J and Olao J, heard six plaintiff witnesses including the Land Registrar Busia, and the defendant with one witness. Olao J held that although the defendant enjoyed prima facie indefeasibility under Sections 24(a) and 26(1) of the Land Registration Act, the plaintiff proved fraud to the required heightened standard through circumstantial and direct evidence: the transfer occurred the same year Apulunary's documents went missing while the defendant cared for his home, and Apulunary, Barasa and his wife were buried on the land where their families remained. The court cancelled the defendant's title but recognized his conceded 1 acre purchase, directing apportionment of that acre to him, with the remainder registered in the plaintiff's name in trust for Apulunary's family, eviction and permanent injunction in default, and the defendant to pay the plaintiff's costs.

Key legal issues

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01

Whether the defendant's title to the whole of Bukhayo/Matayos/1340 was fraudulently acquired

Holding

Fraud was proved by circumstantial and direct evidence; the title was cancelled

Reasoning

The first registered proprietor was Apulunary. The transfer of the whole parcel occurred in June 2009, the same year Apulunary's house was ransacked while in the defendant's care and his ID and title deed went missing. The defendant, despite claiming a purchase, produced no credible consideration for the whole land; Apulunary, Barasa and his wife were buried on the land with their families still resident. The court held this sufficient circumstantial proof of fraud.

p. 10
02

Standard and burden of proof of fraud

Holding

The burden lay on the plaintiff to prove fraud to a standard above balance of probabilities but not beyond reasonable doubt; the defendant also had to demonstrate his acquisition was beyond reproach

Reasoning

Relying on Arthi Highway Developers, Koinange v Charles Karuga Koinange and Kinyanjui Kamau v George Kamau, the court reiterated that fraud must be strictly pleaded and proved. It also invoked Munyu Maina to hold the defendant to a duty to prove the legality of his acquisition beyond the title instrument.

p. 8
03

What remedies follow where fraud is proved but the defendant retains a legitimate interest in 1 acre

Holding

Title cancelled; defendant entitled to apportionment of 1 acre; plaintiff registered owner of the remainder in trust for the family of Apulunary

Reasoning

The plaintiff conceded the defendant purchased 1 acre from Apulunary (consideration a bicycle). The court cancelled the title over the whole parcel but directed the Land Registrar and County Surveyor to apportion 1 acre to the defendant, with the remainder registered in the plaintiff's name in trust for Apulunary's family, plus eviction and permanent injunction in default.

p. 12

Legal principles established

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  • A title may be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where acquired illegally, unprocedurally or through a corrupt scheme
  • Allegations of fraud must be pleaded and proved to a standard above a balance of probabilities but below beyond reasonable doubt
  • A registered proprietor whose root of title is under challenge must prove the legality of how he acquired the title, not merely dangle the instrument of title
  • Circumstantial evidence is capable of proving fraud

Court orders

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  1. 1.The title to the suit land and all the illegal entries in the register to the land parcel NO Bukhayo/Matayos/1340 in the name of the defendant are cancelled forthwith
  2. 2.The defendant shall within 45 days of the Judgment deliver to the Land Registrar Busia the original title deed to the land parcel NO Bukhayo/Matayos/1340 for cancellation
  3. 3.The Land Registrar Busia and the County Surveyor shall apportion out of the land parcel NO Bukhayo/Matayos/1340 a portion measuring one (1) acre to be registered in the name of the defendant, which portion should as much as possible include where the defendant has his house and utilizes
  4. 4.The defendant shall thereafter vacate the portion of the suit land remaining after the apportionment of his one (1) acre, which shall be registered in the name of the plaintiff to hold in trust for the family of Apulunary
  5. 5.In default of vacating, the defendant shall be evicted and permanently injuncted by himself, his family, agents, servants or any other persons acting through him from interfering with the plaintiff's occupation and possession of the portion of the land to be registered in his name in trust
  6. 6.The parties shall meet the costs of survey and registration of their respective parcels of land in their names
  7. 7.The defendant shall meet the plaintiff's costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (7)

  • Arthi Highway Developers Ltd -v- West End Butchery Ltd & 6 Others
    C.A. Civil Appeal No 246 of 2013 [2015 eKLR]
  • Koinange & 13 Others -v- Charles Karuga Koinange
    1986 KLR 23
  • Ratilal Patel -v- Lalji Makanji
    1957 EAR 314
  • Kinyanjui Kamau -v- George Kamau
    2015 eKLR
  • Ndolo -v- Ndolo
    2008 1 KLR (G&F) 742
  • Munyu Maina -v- Hiram Gathiha Maina
    2013 eKLR
  • R.v. Taylor, Weaver & Donovan
    1928 Cr. App R 21
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel Bukhayo/Matayos/1340

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, "Okwako (substituted by Charles Ajuma Obango) v Makokha (Environment & Land Case 99 of 2017) [2024] KEELC 6347 (KLR)", Case Analysis (2024). Not stated in the judgment (Busia Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6347/eng@2024-10-01

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