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ELCPartially AllowedELC E001 of 2022

Makale v Wambugu & 3 others (Environment and Land Case 001 of 2022) [2025] KEELC 6655 (KLR)

Environment and Land Court
3 October 2025
10,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale cancelled a land title obtained through fraud and registered the true beneficial owner, who had traced her ownership through documents.

What this practically means

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Executive summary

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The plaintiff sued as the beneficial owner of Kwale/Kombani Settlement Scheme/1541, having purchased what was then plot 398 of Gidoomal farm from Nassoro Ali Mwasalimu in January 2015 for Kshs 380,000/-, ahead of adjudication and titling under the Kombani Settlement Scheme. Title instead issued to the 2nd Defendant, who sold the parcel to the 1st Defendant in 2020. The plaintiff sought cancellation of the 1st Defendant's title, registration in her name, damages and costs. The 1st and 2nd Defendants denied fraud and pleaded bona fide purchase; the 3rd and 4th Defendants (adjudication officials) denied complicity and raised jurisdictional objections not pursued at judgment. The court framed five issues. It found the plaintiff had established a beneficial interest through a sale agreement compliant with section 3(3) of the Law of Contract Act, a Chief's letter confirming the vendor's ownership, and the settlement committee register. The 2nd Defendant was found to have dishonestly and fraudulently acquired the property, her own witness statement contradicting her defence. The 1st Defendant failed the bona fide purchaser test: his acknowledgement of final payment referencing the Dzuya family as claimants, drafted by himself, revealed notice of competing claims and an attempt to sanitise the transaction; his root of title traced to a fraudulent acquisition. Relying on Dina Management and section 26(1)(b) and 80 of the Land Registration Act, the court cancelled the 1st Defendant's title and ordered its surrender and the plaintiff's registration within 60 days. The damages claim failed for want of proof of special damages. Costs were awarded against the 1st and 2nd Defendants jointly and severally.

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 a beneficiary interest in the suit property to warrant registration of the same into her name.
  2. 2.Whether the 2nd Defendant irregularly and fraudulently acquired the suit property.
  3. 3.Whether the 1st Defendant is a bonafide purchaser
  4. 4.Is the plaintiff entitled to the orders sought?
  5. 5.Who bears the costs of this suit?

Key legal issues

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01

Whether the plaintiff proved a beneficial interest in the suit property

Holding

The plaintiff, having purchased plot 398 from Nassoro Ali Mwasalimu under a written agreement complying with section 3(3) of the Law of Contract Act, supported by a Chief's letter and the committee register, demonstrated a beneficial interest in the suit property

Reasoning

The court found the sale agreement dated 8/01/2015 met section 3(3) of the Law of Contract Act, being written, signed by the parties and attested. The uncontroverted Chief's letter confirmed the vendor owned plot 398 and had capacity to sell. The folio extract from the committee register listed the plaintiff, and the vendor himself testified. The attempted alternative claim by Mwanajuma was unsupported by documents and internally contradictory.

p. 12
02

Whether the 2nd Defendant fraudulently acquired the suit property

Holding

Yes - the 2nd Defendant dishonestly and fraudulently acquired the suit property

Reasoning

The 2nd Defendant's own adopted witness statement acknowledged Mwanajuma as the owner, contradicting her claim. She did not claim the plot at adjudication, the title bore no trust endorsement for Mwanajuma, and she later concealed from the DCI and the sale that the land was not hers. Her conduct amounted to a knowing misrepresentation constituting fraud under the Black's Law Dictionary definition adopted by the court.

p. 14
03

Whether the 1st Defendant is a bona fide purchaser for value

Holding

No - the 1st Defendant is not a bona fide purchaser and his title cannot be protected

Reasoning

The court examined the transaction from the root of title. The acknowledgement of final payment referencing the Dzuya family as beneficiaries, drafted and executed by the 1st Defendant, showed he had notice of competing claims yet concealed this in the sale agreement. The chief's failure to witness the payment, the lack of payment vouchers, and his collusion in sanitising the transaction all negated good faith. His root of title traced to a fraudulent acquisition and could not stand.

p. 16
04

Whether the plaintiff is entitled to the reliefs sought

Holding

The plaintiff was entitled to cancellation and rectification of the register and registration as proprietor, but not to damages for loss of use

Reasoning

Section 80 of the Land Registration Act clothed the court with power to cancel titles obtained by fraud. The 1st Defendant's title could not be sustained, so rectification by cancellation was ordered. However, the damages claim failed as special damages must be specifically pleaded and strictly proved, and no evidence was led. The court exonerated the 3rd and 4th Defendants as blame lay with the 2nd Defendant.

p. 17

Legal principles established

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  • A title may be cancelled under section 80 of the Land Registration Act where the registration was obtained by fraud or mistake, and section 26(1)(b) does not require the title holder to have participated in the fraud provided the title was acquired through a corrupt scheme
  • Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of the acquisition beyond merely producing the title instrument
  • Ownership of unregistered land is proved by tracing the root of title through an unbroken chain of documentary records establishing the claimant's beneficial interest

Court orders

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  1. 1.Land title No. Kwale/Kombani Settlement Scheme/1541 be recalled and surrendered by the 1st Defendant to the Land Registrar's office Kwale and the names of the 1st Defendant Joseph Gichuki Wambugu be removed and cancelled by the 4th Defendant therefrom and the 4th Defendant be ordered to register the names of the Plaintiff as proprietor of Title No. Kwale/Kombani Settlement Scheme/1541.
  2. 2.The 1st Defendant be ordered to return and surrender Title No. Kwale/Kombani Settlement Scheme/1541 within 60 days from the date of the judgment failing which the names of the 1st Defendant stand rescinded, revoked and cancelled from the register of Lands at Kwale Lands Registry and the Land Registrar Kwale be ordered to effect such vacation revocation and cancellation.
  3. 3.The Land Registrar Kwale County be ordered, within expiry of the 60 days, to cancel and remove the names of Joseph Gichuki Wambugu from Title No. Kwale/Kombani/Settlement Scheme/1541 and register the names of the Plaintiff Mishi Abwao Makale as the lawful and valid proprietor of Title No. Kwale/Kombani Settlement Scheme/1541.
  4. 4.The costs of this suit be borne by the 1st and 2nd Defendants jointly and or severally.

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 disputes relating to title and registration of land

Relief refused

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Damages for loss and suffering, denial from use of the land and inconvenience (prayer iv)

The special damages claim was pleaded but no evidence was led in support of it

p. 17

Costs

The costs of this suit be borne by the 1st and 2nd Defendants jointly and or severally.

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.

Land title No. Kwale/kombani Settlement Scheme/1541 be recalled and surrendered by the 1st Defendant to the Land Registrar's office Kwale and the names of the 1st Defendant Joseph Gichuki Wambugu be removed and cancelled by the 4th Defendant therefrom and the 4th Defendant be ordered to register the names of the Plaintifi as proprietor of Title No. Kwale/ Kombani Settlement Scheme/1541.
p. 1Final orders - cancellation of title and registration of plaintiff
The costs of this suit be borne by the 1st and 2nd Defendants jointly and or severally.
p. 18Costs order
It is therefore the finding of this court that the 1st Defendant is not a bonafide purchaser. As a result, his title cannot be protected by the court.
p. 16Bona fide purchaser doctrine failure
where the registered proprietor's root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership.
p. 15Burden on registered proprietor whose title is challenged
Based on the foregoing it is the finding of this court that the plaintifi has demonstrated a beneficial interest in the suit property.
p. 12Proof of beneficial interest in unregistered land
No evidence was led in support of this claim. The court will not belabour the point. It is declined.
p. 17Refusal of special damages claim

Issues in the judgment

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minor

The judgment internally refers to Nassoro Ali Mwasalimu both as PW3 and PW4, and to the committee Chairman both as PW2 and PW3, inconsistently

minor

The 3rd and 4th Defendants' defence is recorded as invoking section 52 of the Societies Act Cap 108, which appears incongruous with a land adjudication defence

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, "Makale v Wambugu & 3 others (Environment and Land Case 001 of 2022) [2025] KEELC 6655 (KLR)", Case Analysis (2025). ELC E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6655/eng@2025-10-03

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