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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 980 (KLR)

Takaungu Investment Limited v Khamis & 2 others (Environment & Land Case 19 of 2022) [2025] KEELC 980 (KLR)

Environment and Land Court
26 February 2025
EME. K. Makori
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a duplicate land title, confirming that land already allocated to one owner cannot be re-registered to someone else later.

What this practically means

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Executive summary

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The plaintiff, Takaungu Investments Limited, sued the 1st defendant (registered proprietor of title No. Lamu/Manda Island/232), the Land Registrar, Lamu County, and the County Government of Lamu, seeking cancellation of the 1st defendant's title, declarations that the suit property (Simba Rungwe Island) was unavailable for reallocation once titles Manda/Island/47 and 48 were issued to it in 2005, expungement of records, a re-survey to reinstate the RIM, and a permanent injunction. The plaintiff traced its root of title to purchases from Omar Ahmed Mohamed (deceased) and his son Mohamed Omar Ahmed in 2004/2005, with transfers registered through Lamu Succession No. 7 of 2005. The 1st defendant never entered appearance. The Land Registrar (DW1) and County Surveyor (DW2) confirmed the three parcel numbers refer to the same ground, that a duplication exists on the Registry Index Map, and that parcel 232, registered to the 1st defendant on 15th February 2011, overlaps land already alienated to the plaintiff in 2005. The court applied the principle that where two titles compete over the same land, the court investigates the root of each title and upholds the one conforming to procedure. It held the plaintiff's title lawful and regular and the later title unprocedural, since already-alienated land cannot be reallocated. However, allegations of fraud and corrupt schemes were not proved to the heightened standard required. All principal reliefs were granted, with the fraud-based declaration reframed as unprocedural issuance, and costs were awarded to the plaintiff.

Key legal issues

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01

Which of the overlapping titles is valid

Holding

The plaintiff's titles (Manda/Island/47 & 48, registered 2005) are lawful and regular; the 1st defendant's later title (Lamu/Manda Island/232, registered 2011) was unprocedurally issued over already alienated land and must be cancelled

Reasoning

Both DW1 (Land Registrar) and DW2 (County Surveyor) confirmed the parcels occupy the same geographical location and that a duplication exists. The plaintiff traced its root of title through succession and registered transfers from the original owners. The 1st defendant did not enter appearance or produce any allotment letter, receipts or chain of ownership. Land already alienated and registered cannot be reallocated; where equities are equal, the first in time prevails.

p. 5
02

Whether title No. Lamu/Manda Island/232 was fraudulently obtained

Holding

Fraud and/or corrupt schemes were not proved to the required standard against the 2nd and 3rd defendants; however, the issuance of the second title over already alienated land was unprocedural and unlawful

Reasoning

Fraud must be specifically pleaded and proved to a standard above a balance of probabilities. The plaintiff did not lead evidence demonstrating fraud on the part of the defendants. Nevertheless, the evidence established a duplication and reallocation of land already alienated to the plaintiff in 2005, which is unprocedural and unlawful regardless of proved fraud. The defect lies in the root of the title, warranting rectification of the duplication.

p. 6

Legal principles established

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  • Where two or more titles exist over the same land, the court must investigate the root of each title and uphold the one that conforms to procedure and traces its root without a break in the chain
  • A registered proprietor whose root of title is challenged must go beyond the instrument of title to prove the legality of the acquisition
  • Where a Commissioner of Lands mistakenly issues two titles over the same parcel, both issued regularly and without fraud, the first in time must prevail
  • Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt

Court orders

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  1. 1.A declaration that upon issuance of title No. Manda/Island/47 and Manda/Island/48 to the plaintiff, the suit property was unavailable for re-allocation and registration to the 1st defendant or any other party
  2. 2.An order directing the Land Registrar, Lamu County, to cancel and/or extinguish the 1st defendant's title No. Lamu/Manda Island/232 to remove any overlap with Manda/Island/47 & 48
  3. 3.A declaration that title No. Lamu/Manda/232 was issued to the 1st defendant unprocedurally and represents an overlap onto title No. Manda/Island/47 & 48
  4. 4.An order directing the 3rd defendant to expunge all records relating to file No. Lamu/Manda Island/232 and undertake a re-survey of parcel No. Manda/Island/47 and Manda/Island/48 to reinstate their RIM and remove the overlap
  5. 5.A permanent injunction restraining the defendants, their agents and/or servants, or any other person acting under their authority from carrying out developments, trespassing upon, fencing, selling, and/or in any other way dealing in respect to the suit property to the plaintiff's detriment
  6. 6.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Evidence ActSection 109
  • Land Registration ActSection 26(1)

Cases cited (6)

  • Hubert Martin & 2 others v Margaret J. Kamar & 5 others
    [2016] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013]
  • Kasarani Mall Ltd v Daniel Otieno Miganga & others
    2017 eKLR
  • Benja Properties Ltd v Syedna Mohamed Barhannidin & 4 others
    [2015] eKLR
  • Gitwany Investment Ltd v Tajmal Limited and & 2 others
    (2006) eKLR
  • Kimanthi Kilonzo v Susan Wangari Kiiru and another
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (not expressly cited in the judgment)

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, "Takaungu Investment Limited v Khamis & 2 others (Environment & Land Case 19 of 2022) [2025] KEELC 980 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/980/eng@2025-02-26

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