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ELCPartially AllowedELC Case No. 297 of 2017 (formerly Machakos HCCC No. 130 of 2012)

Makau v Kianda Foundation Educational Trust & 4 others (Environment and Land Case 297 of 2017) [2025] KEELC 6098 (KLR)

Environment and Land Court
16 September 2025
9,545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who relied only on a title search lost a Ksh 37.5 million property because the seller's title itself was invalid.

What this practically means

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Executive summary

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The Plaintiff, Philip Mutiso Makau, claimed to be the registered owner of Kajiado/kaputiei-central/496 (60 hectares), purchased from the 5th Defendant under a sale agreement of 7th September 1995 and registered in his name in 1997. He discovered in 2012 that the land had been transferred to the 1st Defendant, who bought it from the 5th Defendant in 2011 for Ksh.37,500,000/- and obtained title on 22nd February 2012. The Plaintiff sought cancellation of the 1st Defendant's registration and title, reinstatement of his own title, and removal of developments. The 1st Defendant pleaded bona fide purchaser status; the 2nd, 3rd and 4th Defendants (State actors) denied fraud; the 5th Defendant did not participate. The court found the Plaintiff proved his root of title on a balance of probabilities, while the cancellation of his title - effected without any court order or supporting documentation - was a nullity since a Land Registrar has no power to cancel a title. The 1st Defendant's due diligence, conducted through an advocate, fell short: the unexplained, Registrar-effected cancellation and undocumented re-transfer to the 5th Defendant demanded further enquiry, so its title was defeasible under section 26 of the Land Registration Act. The court declared the Plaintiff the legitimate registered owner, ordered rectification of the register, cancellation of the 1st Defendant's title and all subdivisions created during the suit in breach of injunctive orders, removal of developments, and awarded the Plaintiff costs against the 2nd, 3rd, 4th and 5th Defendants.

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 is the lawful and absolute proprietor of Kajiado/kaputiei-central/496
  2. 2.Whether the 1st Defendant lawfully acquired the title deed for Kajiado/kaputiei-central/496
  3. 3.Whether the Plaintiff is entitled to the reliefs sought
  4. 4.What orders should issue on the costs of the suit

Key legal issues

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01

Whether the Plaintiff is the lawful proprietor of the suit property

Holding

Yes. The Plaintiff proved his acquisition on a balance of probabilities through the sale agreement, Land Control Board consent, transfer instrument and title of 23rd April 1997. The purported cancellation of his title was null and void as no documentation or court order supported it.

Reasoning

The court traced the Plaintiff's root of title: sale agreements culminating in the 7th September 1995 agreement, Land Control Board consent, executed transfer and registration. No party, including the Registrar as custodian of records, produced any documentation explaining the cancellation of the Plaintiff's title or re-issuance to the 5th Defendant. DW1 admitted a title can only be cancelled by court order and none existed. The cancellation was therefore a nullity on the Macfoy principle, and the Plaintiff's constitutional right to property under Article 40(1) required protection.

p. 12
02

Whether the 1st Defendant lawfully acquired title as a bona fide purchaser for value

Holding

No. Its due diligence was insufficient; the 5th Defendant had no title to pass since he had already sold and transferred the land to the Plaintiff. The 1st Defendant's title is defeasible under section 26 of the Land Registration Act.

Reasoning

Although the 1st Defendant conducted a search and engaged a surveyor, its advocate was told the Plaintiff's title had been cancelled by the Registrar - an act no Registrar has power to perform - and that a re-transfer back to the 5th Defendant was undocumented. These red flags demanded further enquiries. Relying on Samuel Kamere and the Tor|[ Abrams]|rens insurance principle, the court held the search was not enough; the 1st Defendant failed to establish it acquired valid and legal title from a lawful owner. Its remedy lies in unjust enrichment against the 5th Defendant.

p. 13
03

Whether the Plaintiff is entitled to the reliefs sought

Holding

Yes. The court exercised its power under section 80 of the Land Registration Act to rectify the register by cancelling the 1st Defendant's title and all subsequent subdivisions made during the pendency of the suit in breach of injunctive orders.

Reasoning

The Plaintiff proved his case to the required standard. The Registrar had continued facilitating subdivisions despite conservatory orders issued by Thuranira Jaden J on 19th June 2014 and inhibition orders by Christine Ochieng J on 14th November 2017. Citing the Nathan Tirop Koech case, the court held property cannot be taken except in accordance with the Constitution and statute, and ordered rectification of the register reinstating the Plaintiff's title and cancelling all resultant subdivisions.

p. 16
04

Liability of the Land Registrar for the fraudulent dealings

Holding

The Registrars' conduct was lacklustre, negligent, reckless and outright illegal; the State must bear responsibility for its officers' conduct, though no relief against the State was sought by the 1st Defendant.

Reasoning

Under the Torrens insurance principle the State guarantees the accuracy of the register and indemnifies persons prejudiced by register inaccuracies. Section 9 of the Land Registration Act obliges the Registrar to maintain the register in a secure, accessible and reliable format, yet the correspondence file lacked the green card and no documents explained the re-transfer. The court faulted the Registrar for facilitating subdivisions while the suit was pending and subject to court orders, and made them bear costs alongside the 5th Defendant.

p. 14

Legal principles established

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  • A Land Registrar has no legal authority to cancel a title; only a court of law may cancel a title on grounds of fraud or illegality
  • Where a registered proprietor's root of title is challenged, the proprietor must prove the legality of how the title was acquired, not merely dangle the instrument
  • A title acquired illegally, unprocedurally or through a corrupt scheme is defeasible under section 26 of the Land Registration Act

Court orders

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  1. 1.The Plaintiff is declared to be the legitimate and registered owner of Kajiado/kaputiei-central/496
  2. 2.The 2nd and 3rd Defendants are ordered to cancel the registration of Kajiado/kaputiei-central/496 in the 1st Defendant's name
  3. 3.The 2nd and 3rd Defendants are ordered to revoke the title deed issued to the 1st Defendant in respect of Kajiado/kaputiei-central/496 and the title deeds issued in respect of the subdivisions (Kajiado/kaputiei-central/5261 to 5273; 5759 to 5761; 6254; 6255; 6275 to 6293; and 6377 to 6339)
  4. 4.The 1st Defendant is ordered to reverse any structural development it may have begun on the suit property or in the alternative to bear the cost to the Plaintiff for him to remove all or any unlawful developments within the suit land
  5. 5.The Plaintiff's costs of the suit shall be borne by the 2nd, 3rd, 4th and 5th Defendants

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 over title to land (suits concerning ownership, cancellation and rectification of title)

Relief refused

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Relief against the State for the conduct of the Land Registrars at the suit of the 1st Defendant

The 1st Defendant never sought any relief against the State despite the court finding the Registrars' conduct negligent and illegal

p. 15

Costs

The Plaintiff's costs of the suit shall be borne by the 2nd, 3rd, 4th and 5th Defendants

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.

The Plaintifi is declared to be the legitimate and registered owner of Kajiado/kaputieicentral/496.
p. 16disposition - declaration of ownership
The 2nd and 3rd Defendants are hereby ordered to revoke the title deed issued to the 1st Defendant in respect of Kajiado/kaputiei-central/496
p. 16disposition - revocation of 1st Defendant's title
The Plaintifi’s cost of the suit shall be borne by the 2nd, 3rd ,4th and 5th Defendants.
p. 17disposition - costs
I must be categorical that the Land Registrar has no legal authority to cancel a title. The only institution with the mandate to cancel a title to land on the basis of fraud or illegality is a court of law.
p. 12limits of the Registrar's powers
due diligence must go beyond a mere search of the title.
p. 13standard of due diligence for purchasers
Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.
p. 15defeasibility of title (Dina Management)
The only available remedy for the 1st Defendant is to pursue the 5th Defendant and seek a refund of its monies under the doctrine of unjust enrichment.
p. 15bona fide purchaser's fallback remedy

Issues in the judgment

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material

Internal inconsistency in the date of cancellation of the Plaintiff's title: para 62 states it was cancelled on 23rd April 1997 while DW1's testimony records cancellation through entry No. 5 on 23/4/1999.

material

Inconsistency as to when the 1st Defendant's title was issued: DW1 testified a title was re-issued to the 1st Defendant on 18/1/2007 per green card entry No. 7, while the court elsewhere records the 1st Defendant's title as dated 22nd February 2012.

minor

The disposition lists orders lettered a, b, c then jumps to f and g, omitting letters d and e.

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, "Makau v Kianda Foundation Educational Trust & 4 others (Environment and Land Case 297 of 2017) [2025] KEELC 6098 (KLR)", Case Analysis (2025). ELC Case No. 297 of 2017 (formerly Machakos HCCC No. 130 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6098/eng@2025-09-16

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