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ELRCPartially AllowedELC Suit No. 1074 of 2013 (suit filed 22nd July, 2013)· [2018] KEELRC 664 (KLR)

Mongeri Mirieri Nyanganyeria v District Land Registrar Thika & 2 others [2018] KEELRC 664 (KLR)

Environment and Land Court
25 October 2018
5,520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, a retired teacher, was allocated 3 acres at Ruiru by Mwalimu Investment Company Limited (Mwico) in 1982 and registered as proprietor of Ruiru/Ruiru East Block 3/1867 on 17th January, 1997 at Kiambu Land Registry. In January 2009 a search revealed the property registered in the name of the 3rd defendant, who had purchased it from the 2nd defendant, the purported first registered owner since 16th April, 2004. The plaintiff sued for a declaration of ownership, cancellation of the 2nd and 3rd defendants' titles, rectification of the register and a permanent injunction. The 2nd defendant did not defend the suit. The court framed four issues: first registration, the lawfulness of the 2nd defendant's acquisition, the lawfulness of the transfer to the 3rd defendant, and entitlement to relief. Relying on DW2 (a land registrar who could not trace the Kiambu-to-Thika transfer returns and confirmed the plaintiff's title deed genuine) and DW3 (a former Mwico clerk who produced Mwico's allocation register and branded the 2nd defendant's letter of allotment a forgery), the court found the plaintiff was first registered and that the 2nd defendant, an Mwico clerk, fraudulently acquired the property with the connivance of the 1st defendant, who removed or destroyed the original register. Applying Munyu Maina, Daudi Kiptugen, Benja Properties and West End Butchery, the court held that a void title passes no interest even to a bona fide purchaser for value; the 3rd defendant, though innocent, acquired nothing and could not invoke sections 26 and 80(2) of the Land Registration Act. Judgment was entered for the plaintiff with declaration, cancellation of the fraudulent titles, reconstruction of the original register, a permanent injunction, and costs against the 1st and 2nd defendants only. Delivered at Nairobi on 25th October, 2018.

Key legal issues

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01

Who was first registered as owner of the suit property

Holding

The plaintiff was first registered on 17th January, 1997 at Kiambu Land Registry; the 2nd defendant's registration of 16th April, 2004 at Thika Land Registry followed a fraudulent removal of the plaintiff's register

Reasoning

The plaintiff's allotment by Mwico in 1982, registration in 1997 and genuine title deed were corroborated by DW2 (land registrar) who conceded he could not trace the Kiambu-to-Thika returns, and by DW3, a former Mwico clerk, whose uncontroverted evidence identified the plaintiff's plot and branded the 2nd defendant's letter of allotment a forgery. The 2nd defendant, an Mwico clerk, had insider information and never defended the fraud allegations.

p. 4
02

Whether the 2nd defendant acquired the suit property lawfully

Holding

No - he acquired it fraudulently and unlawfully using forged documents and his position as a clerk at Mwico

Reasoning

The evidence pointed to a fraudulent scheme hatched by the 2nd defendant with the connivance of the 1st defendant: when records were transferred to Thika Land Registry, the plaintiff's register was removed or destroyed and a new register opened in the 2nd defendant's name. His allotment letter was a forgery, his payments did not match payable charges, and he did not defend the suit so the fraud allegations stood uncontroverted. The plaintiff's earlier title must prevail as the first in time.

p. 4
03

Whether the 3rd defendant acquired lawful title from the 2nd defendant

Holding

No - although innocent and a purchaser for value, she acquired no valid interest because the 2nd defendant's void title could pass nothing

Reasoning

The court accepted the 3rd defendant was not involved in the fraud: she searched the register, dealt with the person appearing as registered owner and paid Kshs.360,000/=. However, a null and void title conveys no interest, so she acquired nothing. Her title did not qualify for protection under sections 26 and 80(2) of the Land Registration Act, 2012 because she did not deal with the true registered proprietor but with a fraudster.

p. 5
04

Whether the plaintiff was entitled to the reliefs sought

Holding

Yes - the plaintiff proved his claim and obtained the declaration, cancellation, rectification/reconstruction of the register and permanent injunction sought

Reasoning

Having established that he held the genuine, first-in-time title and that the defendants' registrations were products of fraud, the court entered judgment against the defendants jointly and severally, granting all the reliefs claimed in the plaint, including reconstruction of the original register and a permanent injunction, with costs against the 1st and 2nd defendants only.

p. 5

Legal principles established

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  • Where a registered proprietor's root of title is under challenge, the instrument of title alone is insufficient; the proprietor must prove the legality of the acquisition
  • Where two titles exist over the same parcel, the first in time prevails and retains its sanctity
  • A fraudster's void title passes no interest, even to a bona fide purchaser for value who dealt with a non-proprietor; such a purchaser cannot invoke indefeasibility

Court orders

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  1. 1.Declaration that the plaintiff is the lawful proprietor of Ruiru/Ruiru East Block 3/1867 and that the titles acquired by the 2nd and 3rd defendants were fraudulent, null and void
  2. 2.Order cancelling the land register opened on 16th April, 2004 for Ruiru/Ruiru East Block 3/1867 together with all entries therein
  3. 3.Order cancelling the title deeds dated 16th April, 2004 and 12th November, 2008 issued to the 2nd and 3rd defendants respectively
  4. 4.Order for the 1st defendant to reconstruct and/or restore the original register for Ruiru/Ruiru East Block 3/1867 with opening date 17th January, 1997 and the plaintiff as the 2nd registered owner after the Government of Kenya in accordance with the plaintiff's title deed dated 17th January, 1997
  5. 5.Permanent injunction restraining the 2nd and 3rd defendants, their servants, agents and/or assigns from trespassing on or interfering with the plaintiff's quiet possession of Ruiru/Ruiru East Block 3/1867
  6. 6.Judgment entered against the defendants jointly and severally

Authorities

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Legislation

  • Registration of Titles Act (repealed)section 23
  • Land Registration Actsection 26
  • Land Registration Actsection 80(2)

Cases cited (10)

  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR
  • Benja Properties Limited v Syedna Mohammed BurhannudinSahed & 4 others
    [2015] eKLR
  • Gitwany Investment Limited v Tajmal Limited & 2 others
    (2006) eKLR
  • Wreck Motors Enterprises vs. Commissioner of Lands
    C.A. No. 71/1997 (unreported)
  • Faraj Maharus vs. J.B. Martin Glass Industries and 3 others
    C.A 130/2003 (unreported)
  • West End Butchery Ltd. v Arthi Highway Developers Ltd. & 6 others
    [2012] eKLR
  • Arthi Highway Developers Ltd. v West End Butchery Ltd. & 6 others
    [2015] eKLR
  • Alberta Mae Gacie v Attorney General & 4 Others
    (2006) eKLR
  • Iqbal Singh Rai vs Mark Lecchini and the Registrar of Titles
    Civil Case No 1054 of 2001
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Land Registration Act, 2012 reliefs sought; article 162(2)(a) court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mongeri Mirieri Nyanganyeria v District Land Registrar Thika & 2 others [2018] KEELRC 664 (KLR)", Case Analysis (2018). ELC Suit No. 1074 of 2013 (suit filed 22nd July, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/664/eng@2018-10-25

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