Makau v Kianda Foundation Educational Trust & 4 others (Environment and Land Case 297 of 2017) [2025] KEELC 6098 (KLR)
The bottom line
#A Kenyan land buyer who relied only on a title search lost a Ksh 37.5 million property because the seller's title itself was invalid.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff is the lawful proprietor of the suit property
Yes. The Plaintiff proved his acquisition on a balance of probabilities through the sale agreement, Land Control Board consent, transfer instrument and title of 23rd April 1997. The purported cancellation of his title was null and void as no documentation or court order supported it.
The court traced the Plaintiff's root of title: sale agreements culminating in the 7th September 1995 agreement, Land Control Board consent, executed transfer and registration. No party, including the Registrar as custodian of records, produced any documentation explaining the cancellation of the Plaintiff's title or re-issuance to the 5th Defendant. DW1 admitted a title can only be cancelled by court order and none existed. The cancellation was therefore a nullity on the Macfoy principle, and the Plaintiff's constitutional right to property under Article 40(1) required protection.
Whether the 1st Defendant lawfully acquired title as a bona fide purchaser for value
No. Its due diligence was insufficient; the 5th Defendant had no title to pass since he had already sold and transferred the land to the Plaintiff. The 1st Defendant's title is defeasible under section 26 of the Land Registration Act.
Although the 1st Defendant conducted a search and engaged a surveyor, its advocate was told the Plaintiff's title had been cancelled by the Registrar - an act no Registrar has power to perform - and that a re-transfer back to the 5th Defendant was undocumented. These red flags demanded further enquiries. Relying on Samuel Kamere and the Tor|[ Abrams]|rens insurance principle, the court held the search was not enough; the 1st Defendant failed to establish it acquired valid and legal title from a lawful owner. Its remedy lies in unjust enrichment against the 5th Defendant.
Whether the Plaintiff is entitled to the reliefs sought
Yes. The court exercised its power under section 80 of the Land Registration Act to rectify the register by cancelling the 1st Defendant's title and all subsequent subdivisions made during the pendency of the suit in breach of injunctive orders.
The Plaintiff proved his case to the required standard. The Registrar had continued facilitating subdivisions despite conservatory orders issued by Thuranira Jaden J on 19th June 2014 and inhibition orders by Christine Ochieng J on 14th November 2017. Citing the Nathan Tirop Koech case, the court held property cannot be taken except in accordance with the Constitution and statute, and ordered rectification of the register reinstating the Plaintiff's title and cancelling all resultant subdivisions.
Liability of the Land Registrar for the fraudulent dealings
The Registrars' conduct was lacklustre, negligent, reckless and outright illegal; the State must bear responsibility for its officers' conduct, though no relief against the State was sought by the 1st Defendant.
Under the Torrens insurance principle the State guarantees the accuracy of the register and indemnifies persons prejudiced by register inaccuracies. Section 9 of the Land Registration Act obliges the Registrar to maintain the register in a secure, accessible and reliable format, yet the correspondence file lacked the green card and no documents explained the re-transfer. The court faulted the Registrar for facilitating subdivisions while the suit was pending and subject to court orders, and made them bear costs alongside the 5th Defendant.
Legal principles established
#- A Land Registrar has no legal authority to cancel a title; only a court of law may cancel a title on grounds of fraud or illegality
- Where a registered proprietor's root of title is challenged, the proprietor must prove the legality of how the title was acquired, not merely dangle the instrument
- A title acquired illegally, unprocedurally or through a corrupt scheme is defeasible under section 26 of the Land Registration Act
Court orders
#- 1.The Plaintiff is declared to be the legitimate and registered owner of Kajiado/kaputiei-central/496
- 2.The 2nd and 3rd Defendants are ordered to cancel the registration of Kajiado/kaputiei-central/496 in the 1st Defendant's name
- 3.The 2nd and 3rd Defendants are ordered to revoke the title deed issued to the 1st Defendant in respect of Kajiado/kaputiei-central/496 and the title deeds issued in respect of the subdivisions (Kajiado/kaputiei-central/5261 to 5273; 5759 to 5761; 6254; 6255; 6275 to 6293; and 6377 to 6339)
- 4.The 1st Defendant is ordered to reverse any structural development it may have begun on the suit property or in the alternative to bear the cost to the Plaintiff for him to remove all or any unlawful developments within the suit land
- 5.The Plaintiff's costs of the suit shall be borne by the 2nd, 3rd, 4th and 5th Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over title to land (suits concerning ownership, cancellation and rectification of title)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau v Kianda Foundation Educational Trust & 4 others (Environment and Land Case 297 of 2017) [2025] KEELC 6098 (KLR)", Case Analysis (2025). ELC Case No. 297 of 2017 (formerly Machakos HCCC No. 130 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6098/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.