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ELCPartially AllowedELC Case No. 286 of 2012 (formerly ELC Machakos, transferred to ELC Kajiado)

Sabore v Wanene & another (Environment & Land Case 19 of 2021) [2024] KEELC 5336 (KLR)

Environment and Land Court
11 July 2024
2,142 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled fraudulently obtained land titles, restored the owner's name, and awarded Kshs 1 million in damages.

What this practically means

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Executive summary

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The plaintiff sued over parcel Kajiado/Kaputiei North/2904, which he alleged the 1st Defendant fraudulently obtained after duping him into handing over the original title deed in 1996 purportedly for a registry search, then transferred the parcel to himself, subdivided it into parcels 4255-4259, and sold one parcel to the 2nd Defendant (Fistec Investment Limited). The suit, initially filed at ELC Machakos in 2012 and transferred to ELC Kajiado, proceeded as a formal proof against an unparticipating 1st Defendant; the 2nd Defendant never entered appearance. The court framed four issues: ownership, proof of fraud, entitlement to relief and costs. Relying on Karugi v Kabiya and Kenya Power v Gachoka, it held the plaintiff's burden was unchanged by the undefended posture. On the evidence, it found no sale between the parties, a reported loss of title, and a grossly irregular sequence in which the title deed for parcel 4258 issued in November 2011 before the January 2012 mutation creating the subdivision. Applying the elevated standard for fraud from Demutila Nanyama Pururmu and Kinyanjui Kamau, the court held fraud was proved, that a title acquired un-procedurally is not protected under Section 26 of the Land Registration Act, and ordered rectification under Section 80. Judgment was entered for the plaintiff: cancellation of all titles emanating from parcel 2904 and rectification of the register in his favour within 60 days, a permanent injunction against the defendants, general damages of Kshs 1,000,000, and costs borne by the 1st Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff has discharged his burden in proving that he is the owner of property Kajiado/Kaputiei North/2904
  2. 2.Whether the Plaintiff has proved the allegation of fraud against the 1st Defendant
  3. 3.Whether the Plaintiff is entitled to the orders sought
  4. 4.Who should bear costs of the suit?

Key legal issues

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01

Burden of proof in an undefended suit

Holding

The plaintiff's burden remains the same whether or not the suit is defended; uncontroverted evidence must still be interrogated

Reasoning

Relying on Karugi v Kabiya and Kenya Power v Gachoka, the court held that formal proof does not lower the threshold; the plaintiff must still prove his case on a balance of probability whether the evidence was challenged or not.

p. 3
02

Proof of fraud

Holding

Fraud was proved on the higher civil standard given the irregular sequence where a title deed for parcel 4258 issued before the subdivision creating it

Reasoning

The mutation form subdividing parcel 2904 was dated 3rd January 2012, yet the title for parcel 4258 was issued on 25th November 2011. The court found such a sequence implausible and grossly irregular, satisfying the elevated standard of proof for fraud.

p. 4
03

Indefeasibility of title

Holding

A title obtained un-procedurally or by fraud is not protected under Section 26 of the Land Registration Act and is liable to rectification under Section 80

Reasoning

The court reasoned that the transfer and subdivision were un-procedural, and citing Dina Management Ltd, held that a fraudulently or irregularly acquired title cannot invoke the sanctity of title, and the register should be rectified.

p. 4
04

General damages for breach of right to property

Holding

General damages of Kshs 1,000,000 awarded for breach of the plaintiff's right to enjoy his property

Reasoning

Having found the 1st Defendant unprocedurally transferred and subdivided the suit property, breaching the plaintiff's right to enjoy his property, and guided by Attorney General v Zinj Limited on the discretionary nature of general damages, the court awarded Kshs 1,000,000.

Legal principles established

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  • The burden of proof on a plaintiff is not lessened where a case proceeds by way of formal proof in an undefended suit
  • Allegations of fraud must be strictly pleaded and proved to a standard higher than balance of probability but lower than beyond reasonable doubt
  • A title acquired un-procedurally is not protected by the sanctity of title under Section 26 of the Land Registration Act and may be rectified under Section 80

Court orders

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  1. 1.The Land Registrar Kajiado is ordered to cancel all titles emanating from parcel Kajiado/Kaputiei North/2904 and rectify the register to reflect the Plaintiff, Tuleto Ole Kishapui, within 60 days from the date of the Judgment
  2. 2.A permanent injunction is issued against the Defendants, their servants, assignees, transferees and/or anyone acting on their instructions from entering and/or interfering with property Kajiado/Kaputiei North/2904 in any manner
  3. 3.The Plaintiff is awarded general damages of Kshs 1,000,000/=
  4. 4.The costs of the suit shall be borne by the 1st Defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)

Relief refused

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Interest on costs/general damages as specifically prayed

Judgment entered on the four heads only; no separate interest order was made

Costs

The costs of the suit shall be borne by the 1st Defendant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Land Registrar Kajiado is ordered to cancel all titles emanating from parcel Kajiado/ Kaputiei North/2904 and rectify the register to reflect the Plaintiff, Tuleto Ole Kishapui, within 60 days from the date of this Judgement.
p. 5Final orders - cancellation and rectification of register
The Plaintifi be awarded general damages of Kshs 1,000,000/=. iv. The costs of the suit shall be borne by the 1st Defendant.
p. 5Final orders - damages and costs
I fervently believe that such a sequence, where a title deed precedes the subdivision of the property, is implausible and grossly irregular.
p. 4Irregularity of the transfer and subdivision
Whether the suit is defended on not, the burden of proof remains the same and the threshold must be met.
p. 3Burden of proof in undefended suits
A title acquired un-procedurally is not sacred and cannot be protected under sanctity of title as espoused by Section 26 of the Land Registration Act.
p. 4Indefeasibility of title

Issues in the judgment

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minor

The pleadings describe the 2nd Defendant as Fistec Investment Limited yet the judgment elsewhere refers to 'Fistec Limited'; the exact registered name is inconsistent within 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, "Sabore v Wanene & another (Environment & Land Case 19 of 2021) [2024] KEELC 5336 (KLR)", Case Analysis (2024). ELC Case No. 286 of 2012 (formerly ELC Machakos, transferred to ELC Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5336/eng@2024-07-11

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