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ELCPartially AllowedEnvironment & Land Case 86 of 2024· [2025] KEELC 3318 (KLR)

Githere v M’Munuru & 2 others (Environment & Land Case 86 of 2024) (Environment and Land) [2025] KEELC 3318 (KLR)

Environment and Land Court
24 April 2025
11,024 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a fraudulently obtained land title, ruled a buyer who did due diligence could still recover Kshs 11.57 million from the fraudulent seller, and censured the Land Registrar.

What this practically means

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Executive summary

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The Plaintiff, Sally Gachonjo Githere, sued over land parcel Kijabe/Kijabe Block 1/1103, registered in her name on 25th September 2009 upon transmission under her mother's will confirmed in Succession Cause No. 3143/2006. She discovered a search showing registration in favour of the 2nd Defendant, Benjamin Ngugi Ndungu, and alleged the 1st Defendant, Jeremiah Kubia M'unuru, fraudulently procured registration of the land in his name on 9th May 2022 and sold it to the 2nd Defendant for Kshs. 11,000,000/=. The 1st and 3rd Defendants (the Land Registrar, Naivasha) did not enter appearance. The 2nd Defendant defended as a bona fide purchaser for value, having conducted a registry search, physically inspected the vacant land, obtained Land Control Board consent, paid stamp duty and lodged transfer documents, and counterclaimed against the 1st Defendant for refund of the purchase price, legal fees and stamp duty under a warranty and indemnity clause. The Land Registrar, summoned to testify, produced the Green Card and parcel file but could not locate presentation book records for the transfer from the Plaintiff to the 1st Defendant and could not vouch for its legality, though he confirmed the later transfer to the 2nd Defendant was procedurally regular. Applying Section 26(1) of the Land Registration Act and the Supreme Court's decision in Dina Management, the court held indefeasibility is not absolute; the 1st Defendant's title, procured by fraud or an illegal, unprocedural or corrupt scheme, conveyed no valid title to the 2nd Defendant, who accordingly could not rely on bona fide purchaser protection as against the Plaintiff. However, nothing implicated the 2nd Defendant in the fraud, so his counterclaim against the 1st Defendant succeeded. The court also censured the Land Registrar for registering the later transfer despite the missing records. Judgment was entered for the Plaintiff on the main claim and for the 2nd Defendant on the counterclaim, with the 1st Defendant ordered to refund the purchase price, legal fees and stamp duty with interest, and to pay costs of both the suit and counterclaim.

Key legal issues

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01

Whether the Plaintiff proved fraud in the transfer of the suit land from her to the 1st Defendant

Holding

Yes. The Plaintiff, still holding her original title, never sold or transferred the land; the Land Registrar could find no records of the transfer and could not vouch for its legality. The 1st Defendant, unrepresented and undefending, was found to have obtained title through fraud or an illegal, unprocedural or corrupt scheme.

Reasoning

The Plaintiff pleaded and particularised fraud and testified she never signed any sale agreement, transfer or Land Control Board consent, and retained her original title. Section 36 of the Land Registration Act requires surrender of the original title for a valid disposition. The Registrar testified he could not locate the presentation book records and could not vouch for the transfer's authenticity, yet nonetheless registered subsequent dealings. Under Section 26(1) indefeasibility does not protect titles acquired illegally, unprocedurally or through a corrupt scheme, and Section 80 permits rectification.

p. 16
02

Whether the 2nd Defendant was a bona fide purchaser for value entitled to protection

Holding

As against the Plaintiff, no protection availed him because his seller's root of title was defective; but as against the 1st Defendant, his counterclaim succeeded since nothing implicated him in the fraud and he complied with all conveyancing formalities.

Reasoning

Relying on Dina Management, the court held that a purchaser must establish a valid root of title and that a simple search is insufficient where the title is 'riddled' with issues; the 2nd Defendant's title derived from a fraudulently obtained title and could not be protected under Section 26(1)(b). However, the evidence did not implicate the 2nd Defendant in the 1st Defendant's illegal acts; he conducted due diligence, obtained Land Control Board consent, paid stamp duty and consideration, so his claim against the 1st Defendant for refund of the purchase price, legal fees and stamp duty succeeded.

p. 18
03

Conduct of the Land Registrar

Holding

The court censured the Land Registrar for registering the transfer to the 2nd Defendant despite acknowledging the records for the prior transfer were missing.

Reasoning

Under Section 14 of the Land Registration Act, Registrars bear a duty of diligence in verifying documents presented for registration. Here the Registrar admitted he could not vouch for the authenticity or legality of the transfer from the Plaintiff to the 1st Defendant, yet proceeded to sign Entries 12 to 14. The court stated such breach of duty or procedural misconduct should attract disciplinary action or legal consequences, and expressly frowned upon his conduct.

p. 18

Legal principles established

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  • Allegations of fraud must be strictly proved, to a standard above a mere balance of probabilities.
  • A registered proprietor whose root of title is challenged must prove the legality of how the title was acquired, not merely produce the title instrument.
  • An inquiry into bona fide purchaser status requires examination of the root of title; a simple register search is not sufficient.
  • A purchaser from a seller with a defective title retains a claim against the seller notwithstanding cancellation of the title.

Court orders

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  1. 1.The Plaintiff is declared the legal and registered owner of all that parcel of land known as Kijabe/Kijabe Block 1/1103
  2. 2.The Land Registrar shall, within 30 days, cancel the title and registration of parcel Kijabe/Kijabe Block 1/1103 in the name of the 2nd Defendant and rectify the land register to reflect the Plaintiff as the registered proprietor
  3. 3.A Permanent injunction restraining the Defendants from interfering with the Plaintiff's right of quiet possession to Kijabe/Kijabe Block 1/1103
  4. 4.Judgment entered against the 1st Defendant in the 2nd Defendant's counterclaim: within 30 days the 1st Defendant shall refund to the 2nd Defendant Kshs. 11,000,000/= purchase price, Kshs. 350,000/= legal fees, Kshs. 220,000/= stamp duty, with interest on those items
  5. 5.The 1st Defendant shall pay costs of both the suit and counterclaim

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Land Registration ActSection 36
  • Land Registration ActSection 80
  • Land Registration Act, 2012Section 14
  • Constitution of Kenya, 2010Article 40 and Article 40(6)
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 1 Rule 24

Cases cited (16)

  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Kamau James Njendu v Serah Wanjiru & another
    [2018] KEELC 1412 (KLR)
  • Marclus Kiranga Nimrod & another v Nessy Kuthii Justus & another
    [2019] eKLR
  • Elijah Makeri Nyangw'ara v Stephen Mungai Njuguna & Another
    Eldoret ELC Case No. 609B of 2012
  • Samuel Kamere v Lands Registrar, Kajiado
    [2015] eKLR
  • Said v Shume & 2 others
    (Civil Appeal E050 of 2023) [2024] KECA 866 (KLR)
  • Lawrence Mukiri v Attorney General & 4 Others
    [2013] eKLR
  • Katende v Haridar & Company Ltd
  • R.G Patel v Lalji Makanji
    1957 E.A 314
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Jacob Wekesa Bokoko Balongo v Kincho Olokio Adeya & another
    [2020] eKLR
  • Fahiye & 2 others v Omar & 4 others
    [2014] 2 KLR 224
  • Milankumar Shah and 2 Others v City Council of Nairobi & Attorney General
    Nairobi HCC Suit No. 1024 of 2005 (OS)
  • Champaklal Ramji Shah & 3 Anors v AG & Anor
    HCCC No. 145 of 1997
  • Funzi Development Ltd & Others v County Council of Kwale
    Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR
  • Dina Management Limited v County Government of Mombasa & 5 others
    [2023] KESC 30 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land title and registration disputes (Environment and Land Court Act; Land Registration 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, "Githere v M’Munuru & 2 others (Environment & Land Case 86 of 2024)  (Environment and Land) [2025] KEELC 3318 (KLR)", Case Analysis (2025). Environment & Land Case 86 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3318/eng@2025-04-24

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