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ELCPartially AllowedNot stated in extract (ELC suit, Kajiado)· [2024] KEELC 7192 (KLR)

Abdulrahman v Mungai & 4 others (Environment & Land Case 117 of 2018) [2024] KEELC 7192 (KLR)

Environment and Land Court
28 October 2024
3,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kajiado cancelled fraudulently obtained titles to a Kajiado parcel, returning the land to its original owner despite later resale to a buyer.

What this practically means

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Executive summary

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The plaintiff, registered owner of L.R. Kajiado/Kaputiei-North/2636 since 21/11/1997, sued five defendants after discovering in April 2016 that the land had been transferred to the 1st defendant, a stranger to him, and later to the 5th defendant. He sought declarations of fraud, cancellation of titles and rectification of the register, eviction, injunction and damages for trespass. The 1st defendant claimed she bought the land from the plaintiff under a sale agreement dated 9/2/2011 handled by advocate C.K. Mwihia and later resold to the 5th defendant for Kshs. 7 million. The 2nd to 4th defendants (registry officials) denied fraud, and the 5th defendant pleaded innocent purchaser for value. The court found the plaintiff retained his original title deed, which should have been surrendered on transfer; the advocate said to have handled the sale died on 18/2/2012, yet the 1st defendant claimed to have received the title from him in December 2012; and the mandatory conveyancing documents required by Section 9 of the Land Registration Act were missing from the register, which the court held was fraud. Applying Elizabeth Kamene Ndolo, fraud had to be proved to a standard above balance of probabilities. The conflicting experts' opinions were resolved by looking at the totality of the case per Shah v Shah. Relying on Dina Management and Article 40(6), the 5th defendant, claiming through an unlawful title, could not rely on the bona fide purchaser doctrine. Under Article 65(2) the plaintiff's freehold converts to a 99-year lease. Judgment was entered for the plaintiff on prayers (a), (c), (e), (h) and (j) of the amended plaint.

Key legal issues

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01

Who is the lawful owner of the suit land

Holding

The plaintiff is the lawful owner; his 1997 title deed was retained and the defendants could not explain mandatory conveyancing records missing from the registry

Reasoning

The plaintiff retained the original 1997 title deed, which would have been surrendered on transfer. The advocate said to have handled the sale died in February 2012, yet the 1st defendant claimed to have received the title from him in December 2012. The mandatory conveyancing documents required by Section 9 of the Land Registration Act were missing from the register, which the court treated as fraud to disadvantage the plaintiff.

p. 5
02

Whether the plaintiff executed the sale agreement and acknowledgement voucher

Holding

The plaintiff did not sign the sale agreement and acknowledgement voucher of 9/2/2011

Reasoning

The two document examiners differed on the signatures, so the court looked at the totality of the evidence. The 1st defendant was not an eyewitness to the signing and left everything to advocate C.K. Mwihia, who had died and could not corroborate her account. Applying Shah v Shah, the court was not bound to accept the expert opinion.

p. 6
03

Whether the 5th defendant is an innocent purchaser for value

Holding

The 5th defendant cannot rely on the bona fide purchaser doctrine because he claims through the 1st defendant whose title was found to be unlawfully acquired

Reasoning

Applying Article 40(6) of the Constitution and Dina Management, since the 1st defendant's title was unlawful, a purchaser deriving title from her cannot claim protection as a purchaser for value without notice.

p. 7
04

Effect of foreign ownership of freehold land post-2010 Constitution

Holding

The plaintiff's freehold tenure is converted to a 99-year lease under Article 65(2)

Reasoning

Article 65(2) limits freehold ownership to citizens; the best outcome in the circumstances was conversion of the plaintiff's freehold to a 99-year lease.

p. 6

Legal principles established

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  • Fraud must be pleaded and proved to a standard higher than the ordinary balance of probabilities
  • Expert opinion is not binding on the court; the court considers it with other relevant facts
  • Property found to have been unlawfully acquired is not protected under Article 40, and one claiming through an unlawful title cannot rely on the bona fide purchaser doctrine
  • Foreign freehold tenure is limited to a 99-year lease under Article 65 of the Constitution

Court orders

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  1. 1.Declaration that the transfer of the suit land to the 1st defendant was fraudulent
  2. 2.Cancellation of the title deed issued in respect of the suit land and rectification of the register to read Abdulrahman Ali Abdulrahman
  3. 3.Declaration that the defendants and persons claiming through them are trespassers, with eviction and demolition of structures on the suit property
  4. 4.Damages for trespass and mesne profits at Kshs. 10,000/- per month from the date of filing of the suit
  5. 5.Judgment for the plaintiff against the five defendants jointly and severally as per prayers (a), (c), (e), (h) and (j) of the amended plaint dated 20/6/2016

Authorities

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Legislation

  • Land Registration ActSection 9
  • Constitution of Kenya 2010Article 40(6)
  • Constitution of Kenya 2010Article 65(2)

Cases cited (3)

  • Elizabeth Kamene Ndolo –versus- George Matata Ndolo
    Civil Appeal No. 128 of 1995
  • Shah and another –versus- Shah and others
    (2003) 290
  • Dina Management Limited –versus- County Government of Mombasa and 5 others
    Petition No. 8 (E010) of 2021
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (suit concerning title to land L.R. Kajiado/Kaputiei-North/2636); Article 40(6) and 65 of the Constitution of Kenya 2010 applied

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, "Abdulrahman v Mungai & 4 others (Environment & Land Case 117 of 2018) [2024] KEELC 7192 (KLR)", Case Analysis (2024). Not stated in extract (ELC suit, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7192/eng@2024-10-28

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