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ELCPartially AllowedKwale ELC suit of 2021 (Plaint dated 22nd March 2021)

Ali v Raso & another (Environment & Land Case 83 of 2021) [2025] KEELC 2909 (KLR)

Environment and Land Court
27 March 2025
7,447 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~30 min to read original · ~4 min brief

The bottom line

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The court cancelled a fraudulent title over Diani land and restored the original owner, proving that an authentic, traceable title beats a disputed one.

What this practically means

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Executive summary

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The plaintiff sued over land parcel Kwale/Diani 183, alleging that the 1st and 2nd defendants fraudulently replaced her name with the 1st defendant's as proprietor, and sought declarations that her 2002 title was valid and the 1st defendant's title null and void, rectification of the register, a permanent injunction, damages for trespass, vacant possession and costs. The 1st defendant counterclaimed for a declaration of ownership, cancellation of the plaintiff's title and general damages, claiming allocation by the government in 1992. The 2nd defendant (land registrar) denied negligence and filed a notice of claim against the co-defendant. The court faced three competing registers over the same parcel. Applying the principle that a holder whose root of title is challenged must prove legality of acquisition, the court found the plaintiff's chain - through Jiwa to Khadija via a certificate of outright purchase - well documented and her title authenticated by the land registrar. The 1st defendant, who never testified, offered no medical proof of incapacity; adverse inferences were drawn. Her title bore an altered date, contradictory presentation and registration dates, irregular franking, and the registrar could not confirm its authenticity. The court held fraud and irregularity engaged the section 26(1) Land Registration Act exceptions and ordered rectification under section 80. The claim largely succeeded; damages for trespass were declined, the counterclaim was dismissed, and each party was ordered to bear their own costs.

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 Plaintiff and the 1st Defendant is the lawful registered owner of the suit property?
  2. 2.Are the reliefs sought available?
  3. 3.Who should bear the costs of the suit and counterclaim?

Key legal issues

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01

Whether the plaintiff or the 1st defendant holds the lawful title to Kwale/Diani 183

Holding

The plaintiff is the lawful registered proprietor; the 1st defendant's title is tainted by fraud and irregularities and is null and void

Reasoning

Both parties had to defend their titles. The plaintiff traced her root through documented transfers culminating in a certificate of outright purchase to Khadija and a title authenticated by the land registrar, who confirmed it tallied with the register. The 1st defendant's title bore an altered date, contradictory registration and presentation dates, irregular franking, and the land registrar could not confirm its authenticity. The 1st defendant never testified, and adverse inferences were drawn.

p. 11
02

Whether the plaintiff's title was void because she is a foreigner holding freehold land

Holding

The titles became leasehold interests of 99 years; foreigners are not barred from owning land

Reasoning

The court held that the constitutional transitional provisions automatically converted freehold titles held by non-citizens into 99-year leaseholds, and the Constitution does not prohibit foreign ownership of land; the plaintiff still held her original authentic title.

p. 10
03

Whether the 2nd defendant's notice of claim against co-defendant in the counterclaim could stand

Holding

It could not be sustained in view of the finding in favour of the plaintiff

Reasoning

Having found the plaintiff to be the lawful proprietor and the 1st defendant's title fraudulent, there was no basis for the registrar's third-party claim against the plaintiff in the counterclaim.

p. 11
04

Whether the register should be rectified and permanent injunction granted

Holding

Yes - rectification under section 80 of the Land Registration Act was ordered and a permanent injunction issued

Reasoning

Since the 1st defendant's registration was obtained by fraud and irregularity, the statutory exceptions to indefeasibility were engaged, justifying cancellation of the entries, restoration of the plaintiff as proprietor and a permanent injunction defining the parties' rights after full hearing.

p. 12

Legal principles established

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  • Where a registered proprietor's root of title is under challenge, the holder must go beyond the title instrument and prove the legality of the acquisition
  • When faced with competing titles over the same land, the court must investigate from the root and uphold the title that conforms to procedure and traces its root without a break
  • A title may be impeached under section 26(1) of the Land Registration Act on grounds of fraud or where acquired illegally, unprocedurally or through a corrupt scheme
  • The Constitution converts freehold interests into leasehold but does not bar foreigners from owning land in Kenya

Court orders

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  1. 1.A declaration that the plaintiff's title deed for Kwale/Diani 183 issued on 7th May 2002 is valid
  2. 2.A declaration that the title deed issued to the 1st defendant for Kwale/Diani 183 is null and void
  3. 3.An order directing the 2nd defendant to cancel the entries in favour of the 1st defendant and rectify the register by entering the plaintiff as lawful proprietor
  4. 4.An order directing the 2nd defendant to remove the 1st defendant's name from the register and replace it with the plaintiff's name
  5. 5.A permanent injunction restraining the 1st defendant from interfering with the plaintiff's proprietary rights over Kwale/Diani 183
  6. 6.Vacant possession of the suit property to be handed over from the 1st defendant to the plaintiff
  7. 7.The 1st defendant's counterclaim dismissed with no orders as to costs
  8. 8.The orders on rectification and vacant possession to be implemented within 60 days of judgment
  9. 9.The plaintiff's original title held by the court to be released to her after the 60-day period
  10. 10.Each party to bear their own costs

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 under the Environment and Land Court Act over disputes relating to title to land

Relief refused

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Damages for trespass

No proposals or basis for assessment were led before the court

p. 12

General damages in the 1st defendant's counterclaim

Counterclaim dismissed as the 1st defendant's title was not proved to be lawfully acquired

p. 13

Costs

Each party shall bear their own costs

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.

A declaration that the plaintifis title deed issued for the property known as Kwale/Diani 183 issued on the 7th May 2002 is valid
p. 11Final orders - declaration of valid title
A declaration that the title deed issued to the 1st defendant for the property known as Kwale/ Diani 183 is null and void
p. 13Final orders - nullification of 1st defendant's title
The 1st defendants counterclaim is dismissed with no orders as to costs.
p. 13Final orders - counterclaim
While the costs ordinarily follow the event the court in its discretion and in the circumstances of the case makes an order that each party shall bear their own costs.
p. 13Costs
It is the finding of this court that the Plaintifi is the lawful registered proprietor of the suit property.
p. 11Core finding on ownership
the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain
p. 7Competing titles doctrine

Issues in the judgment

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minor

Judgment alternately describes the 1st defendant as 'Khadija Bakari Haraka' holding a Power of Attorney for 'Amina Nkulola Raso', though the defence describes the 1st defendant as having acquired the land on 10/03/1992 and DW1's mother's title is in the name of Amina Nkulola Raso - the relationship between the two names is not fully explained

minor

Pleadings dated inconsistently - the Notice of Claim Against Co-Defendant is described as dated 5/06/2023 when filed but addressed as dated 5/7/2023 in the analysis

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, "Ali v Raso & another (Environment & Land Case 83 of 2021) [2025] KEELC 2909 (KLR)", Case Analysis (2025). Kwale ELC suit of 2021 (Plaint dated 22nd March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2909/eng@2025-03-27

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