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ELCPartially AllowedNot stated in the judgment

Ngome & 10 others v Ndetei & another (Environment & Land Case 91 of 2021) [2024] KEELC 5449 (KLR)

Environment and Land Court
22 July 2024
8,294 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale protected homebuyers from eviction, ruling that only a court order—not a Land Registrar—can cancel a land title.

What this practically means

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Executive summary

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Eleven Plaintiffs, owners of subdivisions carved out of Kwale/Diani Beach Block/651 and purchased from the 2nd Defendant, sued the 1st Defendant to nullify eviction notices dated 4/1/2021 and to restrain eviction, pleading innocent purchaser status, res judicata and limitation. The 1st Defendant claimed she bought the mother parcel from the Settlement Fund Trustee in 1990, that the 2nd Defendant fraudulently procured a title via a Msambweni Land Disputes Tribunal decision, and that her title was reinstated in 2015 through an internal administrative process. The 2nd Defendant supported the Plaintiffs. The court first held the 1st Defendant's case was not res judicata because the judicial review application she filed in 2010 was withdrawn, not heard and determined, and the claim was not time barred since fraud was pleaded and time only runs from discovery under section 26(a) of the Limitation of Actions Act. On the merits, the court found the Tribunal award of 2000, adopted by the Kwale court and never appealed or set aside, still stands; the 1st Defendant produced no court order cancelling the Plaintiffs' or the 2nd Defendant's titles, and only a court of law can cancel title for fraud or illegality. The 2015 reversion of the land to the 1st Defendant was therefore unprocedural and illegal. The Plaintiffs, who bought after the 2nd Defendant's 2000 registration with due diligence and no participation in fraud, were innocent purchasers for value without notice. Judgment was entered for the Plaintiffs declaring the eviction notices null and void, issuing two permanent injunctions against the 1st Defendant, and awarding the Plaintiffs costs. Declarations of res judicata and limitation were declined. Judgment delivered by A.E. Dena J on 22 July 2024.

Questions the Court framed

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

  1. 1.Who between the Plaintiffs and the 1st Defendant is the lawfully registered owner of the suit property [properties] herein?
  2. 2.Whether the Plaintiffs are innocent purchasers for value without notice?
  3. 3.If the answer to b) above is yes are the Plaintiffs entitled to the orders sought?
  4. 4.Who should bear the costs of this suit?

Key legal issues

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01

Res judicata

Holding

The 1st Defendant's case is not res judicata because the earlier judicial review application was withdrawn, not heard and determined on the merits

Reasoning

Section 7 of the Civil Procedure Act requires that the matter in the former suit was heard and finally decided. The JR Civil Application No 21 of 2010 was withdrawn on 13/10/2010 with costs, before determination. The prayers in the former suit and the plaint also differ. A withdrawn suit therefore cannot ground a res judicata plea.

p. 10
02

Limitation of actions

Holding

The suit is not time barred because fraud was pleaded and under section 26(a) of the Limitation of Actions Act limitation does not run until discovery of the fraud

Reasoning

The 1st Defendant pleaded fraudulent acquisition of title by the 2nd Defendant including the subdivision. Okong'o J's dictum in Lureti Obara v Peter Koipeitai applies that time does not start until discovery or reasonable discoverability. Further, the 2010 proceedings, though withdrawn, stopped time running.

p. 10
03

Cancellation of title by the Land Registrar without a court order

Holding

The 2015 reversion of Kwale/Diani Beach Block 651 to the 1st Defendant was unprocedural and illegal because no court order authorised the cancellation

Reasoning

The Land Registrar testified there was no court order directing cancellation of the 2nd Defendant's title, no correspondence informing him, and no investigation report. Section 75 of the Land Registration Act did not apply. Only a court can cancel title for fraud. The Tribunal award of 2000, duly adopted by the Kwale court and never set aside, therefore still stands, and the 2nd Defendant's registration of 20/11/2000 stands with it.

p. 14
04

Whether the Plaintiffs are innocent purchasers for value without notice

Holding

The Plaintiffs are innocent purchasers for value without notice

Reasoning

The Plaintiffs produced sale agreements from the 2nd Defendant, none predating his 20/11/2000 registration, together with title deeds; PW1 and PW2 testified to due diligence corroborated by the Registrar's evidence. No evidence showed the Plaintiffs participated in any fraud or illegality, and fraud was never pleaded or particularised against them.

p. 14

Legal principles established

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  • Only a court of law may cancel a title to land on the basis of fraud or illegality; a Land Registrar has no power to cancel a registered title without a court order
  • A suit that was withdrawn is not res judicata because it was not heard and finally determined on the merits
  • Where a registered proprietor's root of title is under challenge, it is not enough to dangle the title instrument; the holder must explain the root of the title
  • Fraud must be specifically pleaded, particularised and proved to a standard higher than a balance of probabilities

Court orders

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  1. 1.A declaration that the eviction notices dated 4/1/2021 are null and void ab initio and the same are hereby cancelled forthwith
  2. 2.A permanent injunction prohibiting the 1st Defendant by herself, servants, agents and or assignees from carrying out the proposed evictions of the Plaintiffs from the listed suit properties
  3. 3.A permanent injunction prohibiting the 1st Defendant by herself, agents, servants, employees or any other person from evicting, alienating, encroaching upon, disposing, trespassing or in any manner interfering with the Plaintiffs possession and quiet enjoyment of the suit properties
  4. 4.Costs of the suit awarded to the Plaintiffs

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 as first-instance suit (Environment and Land Court); Civil Procedure Act and Land Registration Act invoked; no constitutional or appellate jurisdiction basis stated

Relief refused

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A declaration that the 1st Defendant's claim is res judicata

The earlier judicial review application was withdrawn and therefore was not heard and finally determined on the merits

p. 9

A declaration that the 1st Defendant's claim is barred by limitation

The 1st Defendant pleaded fraud, and under section 26(a) of the Limitation of Actions Act time does not run until fraud is discovered; the withdrawn 2010 proceedings also stopped time running

p. 10

Costs

Costs of this suit are awarded to the Plaintiffs in accordance with section 27 of the Civil Procedure Act (costs follow the event)

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.

Based on the entire analysis in this judgement and the findings I have made the court would have no hesitation to granting the orders sought by the Plaintiffs as they are merited.
p. 14Disposition - Plaintiffs' claim succeeds
A declaration that the eviction notices dated 4/1/2021 are null and void ab initio and the same are hereby cancelled forthwith.
p. 14Final orders - declaration voiding eviction notices
In accordance to the provisions of section 27 of the Civil Procedure Act costs follow the event. Costs of this suit are awarded to the Plaintifi.
p. 15Final orders - costs
The only institution with mandate to cancel a title to land on the basis of fraud or illegality is a Court of law
p. 14Exclusive power of courts to cancel title
the registration in favor of the 2nd Defendant as at 20/11/2000 which was confirmed by DW2 and further as per Land Tribunal Award as per the 1st Defendant's pleadings and latter duly adopted by the court at Kwale as required and having not been set aside still stands.
p. 14The un-set-aside Tribunal award sustains the 2nd Defendant's registration

Issues in the judgment

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minor

The 1st Defendant refers to a judgment by Hon. A.O. Aminga with two inconsistent delivery dates in the judgment's account of the submissions and evidence: "orders on the 16/5/12 declaring the judgment entered on the 24/7/2000 ... null and void" versus "judgement (by Hon Aminga) having been delivered on 6/5/2012 in her favor"

minor

The 2nd Defendant's name is spelt inconsistently throughout the judgment (Athuman Juma Matano, Athumani Juma Matamu, Athman Juma Matano)

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, "Ngome & 10 others v Ndetei & another (Environment & Land Case 91 of 2021) [2024] KEELC 5449 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5449/eng@2024-07-22

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