Ngome & 10 others v Ndetei & another (Environment & Land Case 91 of 2021) [2024] KEELC 5449 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who between the Plaintiffs and the 1st Defendant is the lawfully registered owner of the suit property [properties] herein?
- 2.Whether the Plaintiffs are innocent purchasers for value without notice?
- 3.If the answer to b) above is yes are the Plaintiffs entitled to the orders sought?
- 4.Who should bear the costs of this suit?
Key legal issues
#Res judicata
The 1st Defendant's case is not res judicata because the earlier judicial review application was withdrawn, not heard and determined on the merits
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 The JR Civil Application No 21 of 2010 was withdrawn on 13/10/2010 with costs, before determination.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 A withdrawn suit therefore cannot ground a res judicata plea.
Limitation of actions
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
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 Further, the 2010 proceedings, though withdrawn, stopped time running.
Cancellation of title by the Land Registrar without a court order
The 2015 reversion of Kwale/Diani Beach Block 651 to the 1st Defendant was unprocedural and illegal because no court order authorised the cancellation
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.
Whether the Plaintiffs are innocent purchasers for value without notice
The Plaintiffs are innocent purchasers for value without notice
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.
Legal principles established
#- 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
#- 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.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.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.Costs of the suit awarded to the Plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
#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.
A declaration that the eviction notices dated 4/1/2021 are null and void ab initio and the same are hereby cancelled forthwith.
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.
The only institution with mandate to cancel a title to land on the basis of fraud or illegality is a Court of law
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.
Issues in the judgment
#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"
The 2nd Defendant's name is spelt inconsistently throughout the judgment (Athuman Juma Matano, Athumani Juma Matamu, Athman Juma Matano)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.