Murage (Suing as the Administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another; KCB Bank Kenya Limited (Interested Party) (Environment and Land Case E046 of 2022) [2025] KEELC 6488 (KLR)
The bottom line
#A Kenyan court confirmed that a registered land title means nothing if the process behind it was flawed, and that an unproven defence counts for nothing.
What this practically means
#Executive summary
#Key legal issues
#Admissibility/consideration of an undefended-in-evidence defence and counterclaim
The 2nd defendant's defence and counterclaim could not be treated as proved as he adduced no evidence; the court determined the suit on the evidence of the plaintiff and the 1st defendant, though the plaintiff still bore the burden of proving his case on a balance of probabilities.
The court held that pleadings are not evidence; a party who files a defence but does not testify or call evidence cannot rely on the pleaded assertions. Nevertheless, the plaintiff's claim had to stand on its own proof on a balance of probabilities, citing Wycliffe Lubanga Kefa and Daniel Toroitich arap Moi. Only the plaintiff and 1st defendant (the Land Registrar) gave evidence.
Validity of competing titles over LR Chembe/Kibambamshe/393
The title issued to the deceased on 22nd September 1978 is the valid title; the 2nd defendant's title is invalid, being derived from a transfer by Joseph Kashuru Mumbo whose own title had been declared fraudulent by the Chief Land Registrar on 4th May 2004 and recalled for cancellation.
Three grounds: (1) the Commissioner of Lands' cancellation of titles via Gazette Notice 2505 of 1986 was declared unconstitutional in Helena Kithinji and Mbugua; (2) the transfer from Kashuru to the 2nd defendant was irregular, as no discharge of charge from the Settlement Fund Trustees was registered; (3) the Chief Land Registrar's directive that Kashuru's title be recalled and cancelled remained in force. The registration chain to the 2nd defendant therefore failed.
Effect of the declaratory judgment in Malindi ELC Number 30 of 2011 declaring the 2nd defendant a bona fide purchaser
The judgment in ELC 30 of 2011 bound only its parties; it declared the 2nd defendant a bona fide purchaser only relative to the claimants in that case, not against the plaintiff who was not joined, and could not defeat the plaintiff's proved claim.
The court held that res inter alios acta applies: a declaration between two strangers lacking legal title does not extinguish the true owner's claim when the real owner later appears and proves title. The plaintiff was expressly found by the Court of Appeal to have a fresh cause of action as he never participated in ELC 30 of 2011.
Legal principles established
#- Factual assertions in a defence that are not supported by evidence cannot be deemed proved; pleadings are not a substitute for evidence.
- A title can be declared invalid notwithstanding that it is reflected in the official land register, where the process leading to its issuance did not comply with the law.
- A declaratory judgment binds only the parties to that case and does not operate against strangers such as the registered proprietor who was not joined; it cannot defeat the claim of the true owner who was not a party.
- Under the nemo dat quod non habet principle, one without legal title cannot transfer title to another.
Court orders
#- 1.An order restraining the 1st defendant from cancelling the plaintiff's title issued on 22nd September 1978, amending, rectifying or otherwise interfering with the current Land Register and records pertaining to Land Reference Number Chembe/Kibambamshe/393 save in accordance with the orders of the court in this case
- 2.The County Land Registrar Kilifi to register the Certificate of Confirmation of Grant issued in High Court at Nairobi Succession Cause Number 438 of 1988 upon the plaintiff submitting an application and paying the requisite fees
- 3.An order of permanent injunction restraining the 2nd defendant, his servants, agents and/or employees and anyone claiming under him from interfering with the plaintiff's quiet possession, peaceful enjoyment and/or ownership of Land Reference Number Chembe/Kibambamshe/393
- 4.The 2nd defendant to surrender any documents of title over the suit property to the Land Registrar for immediate cancellation within 7 days, failing which the documents shall be deemed cancelled and invalid
- 5.A declaration that the only valid title to Land Reference Number Chembe/Kibambamshe/393 is the one issued to Bernard Chiuri Murage on 22nd September 1978, and that any other registration to the contrary shall be cancelled
- 6.Costs of the suit to be borne by the 2nd defendant alone
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land registered in Kilifi County (Environment and Land Court Act); suit arising from registration disputes under the Land Registration Act, No. 3 of 2012, Sections 79 and 80 of which were invoked.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nyaki & another v Pijey Investments Limited & 4 others (Environment and Land Case 17 of 2021) [2026] KEELC 3507 (KLR)[2026] KEELC 3507 (KLR)3 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Murage (Suing as the Administrator of the Estate of Bernard Chiori) v Land Registrar, Kilifi County & another; KCB Bank Kenya Limited (Interested Party) (Environment and Land Case E046 of 2022) [2025] KEELC 6488 (KLR)", Case Analysis (2025). Malindi ELC Case (Civil Suit) re Land Reference Number Chembe/Kibambamshe/393. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6488/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.