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ELCPartially AllowedCivil Suit No. 41 of 2019 (OS)

Oyigo v Pierluigia & another (Civil Suit 41 of 2019) [2026] KEELC 1877 (KLR)

Environment and Land Court of Kenya
23 March 2026
32,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~130 min to read original · ~4 min brief

The bottom line

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A Mombasa court cancelled a lease bought through a forged power of attorney, ruling that even paying full price does not protect a buyer who fails to verify the seller's documents.

What this practically means

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Executive summary

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In this first-instance judgment, the Environment and Land Court at Mombasa (L.L. Naikuni, J) determined an Originating Summons dated 13th March 2019 by Jessica Margaret Adhiambo Oyigo against Caffini Pierluigia and the County Land Registrar, Mombasa. The Applicant, sole heir to the estate of Joshua Oluoch Oyigo and registered proprietor of Title No. CR.13827/1 (Sub-division No. 1618 of Section 1 Mainland North, Mombasa) via a Deed of Assent, sought rectification of the land register to expunge a 99-year lease registered in favour of the 1st Respondent, alleging it was founded on a forged Power of Attorney donated to one Jared Omondi Onyango. The 1st Respondent asserted he was a bona fide purchaser for value who paid Kshs. 5,000,000 less rates, and pleaded res judicata based on a decree in Mombasa CM ELC No. 20 of 2018. Following evidence from both parties and the Land Registrar, a court-conducted site visit and written submissions, the Court framed six issues and found that the Applicant was the lawful proprietor; that the lease was fraudulent, unprocedural and void ab initio; that the 1st Respondent, though having paid consideration, had constructive notice and failed to exercise due diligence, disqualifying him from bona fide purchaser protection; and that res judicata did not apply because the earlier judgment had been set aside on 7th November 2019 and the remedies differed. The Court entered judgment for the Applicant, declared the lease null and void, directed the Land Registrar to rectify the register, issued a permanent prohibitory injunction against the 1st Respondent, left him at liberty to pursue the intermediaries, and awarded the Applicant costs with interest at court rates. The Land Registrar, having acted within statutory powers, was not condemned in costs.

Questions the Court framed

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

  1. 1.Whether the Applicant was the lawful proprietor of the Suit Property
  2. 2.Whether the lease registered in favour of the 1st Respondent was fraudulent or validly executed
  3. 3.Whether the 1st Respondent qualified as a bona fide purchaser for value without notice
  4. 4.Whether the suit breached the Doctrine of Res judicata in light of Mombasa CM ELC No. 20 of 2018
  5. 5.What are the appropriate reliefs available to parties
  6. 6.Who meets costs of the suit

Key legal issues

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01

Whether the Applicant was the lawful proprietor of the Suit Property

Holding

Yes - the Applicant lawfully acquired the property through succession and transmission by Deed of Assent, supported by Sections 24 and 25 of the Land Registration Act, and established a prima facie lawful proprietorship.

Reasoning

The Applicant produced a Grant in Succession Cause No. H.C. 857 of 2005, a Deed of Assent dated 10th March 2017, provisional title documents and rate statements in her name. The Land Registrar's evidence confirmed the transmission entry and issuance of a provisional title. Sections 24, 25 and 26 of the Land Registration Act vest absolute ownership in the registered proprietor, subject only to the statutory exceptions of fraud, misrepresentation or unprocedural acquisition. Those exceptions were engaged here as to the subsequent lease entry.

p. 111
02

Whether the lease registered in favour of the 1st Respondent was fraudulent or validly executed

Holding

The lease was fraudulent, unprocedural and void ab initio, being founded on a forged Power of Attorney which the Applicant denied executing.

Reasoning

The Applicant denied executing the Power of Attorney to Jared Omondi Onyango and produced her passport suggesting she was out of the country when it was executed. The 1st Respondent admitted never meeting the Applicant and relying entirely on intermediaries and his advocate. The Registrar entered a Section 76 restriction after the Applicant's lawyers complained. Sections 26(1) and 80 of the Land Registration Act and Article 40(6) of the Constitution permit cancellation of title procured by fraud or unprocedurally. The lease entry was tainted by irregularity and fraud.

03

Whether the 1st Respondent qualified as a bona fide purchaser for value without notice

Holding

No - although valuable consideration was paid, constructive notice existed and the 1st Respondent failed to exercise reasonable due diligence, so he cannot claim the protection of an innocent purchaser.

Reasoning

Payment of the purchase price (Kshs. 4,719,578.00 and Kshs. 273,922.00) was sworn and supported by transfer documents, satisfying the consideration element. However, the recent transmission on the register, the Applicant's visible occupation through a permanent wall and tenant, the intermediated Power of Attorney dealing and the purchaser's own admissions (never meeting the registered proprietor, visiting only once, delegating verification to counsel) put a reasonable purchaser on inquiry. Failure to verify the donor's execution or contact the registered proprietor converted the purchase into one with constructive notice, defeating the bona fide purchaser defence.

p. 102
04

Whether the suit breached the Doctrine of Res judicata in light of Mombasa CM ELC No. 20 of 2018

Holding

No - res judicata does not bar the present suit because the earlier judgment was set aside by the order of 7th November 2019, the remedies differ (possession versus rectification), and fraud on the register is raised.

Reasoning

The record shows an order of 7th November 2019 staying the lower court judgment and setting aside all orders emanating from it, with directions to consolidate with ELC No. 41/2019. A stay or setting aside removes the finality required for res judicata. Further, CM ELC No. 20/2018 concerned vacant possession while the present suit seeks rectification of the register on grounds of fraud, a different cause of action. Earlier decisions obtained by fraud remain open to challenge through rectification proceedings.

p. 111
05

Who bears the costs of the suit

Holding

The 1st Respondent bears the costs as the party whose conduct necessitated the litigation; the 2nd Respondent is shielded from costs absent evidence of complicity.

Reasoning

Applying the principle that costs follow the event under Section 27(1) of the Civil Procedure Act, the successful Applicant is entitled to costs. The 1st Respondent's reliance on irregular instruments caused the dispute. The Land Registrar acted within statutory powers by entering a restriction under Section 76 and should not bear costs unless evidence shows complicity in the irregular registration.

p. 114

Legal principles established

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  • When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how he acquired the title.
  • Fraud must be specifically pleaded and strictly proved; it is not allowable to leave fraud to be inferred from the facts.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
  • A stay or order setting aside a judgment removes the element of finality required for res judicata to operate.

Court orders

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  1. 1.Judgment entered in favour of the Applicant in respect to the Originating Summons dated 13th March 2019, with costs
  2. 2.The Certificate of Lease dated 2nd March 2018 registered in favour of the 1st Respondent declared null and void
  3. 3.A declaration issued that the Applicant, Jessica Margaret Adhiambo Oyigo, is the registered, lawful, and absolute proprietor of the Suit Property, entitled to exclusive and unimpeded possession and occupation thereof
  4. 4.The 2nd Respondent, the County Land Registrar Mombasa, directed to rectify the land register by cancelling the fraudulent entries relating to the purported lease in favour of the 1st Respondent and restoring the register to reflect the Applicant's ownership
  5. 5.A Permanent Prohibitory Injunction issued restraining the 1st Respondent, his servants, agents, employees or anyone claiming under him from entering upon, re-entering, trespassing onto, laying a claim to, building on, interfering with or dealing with the Suit Property
  6. 6.The 1st Respondent left at liberty to consider seeking legal remedy from Mr. Jared Omondi Onyango and Mr. Stephen Obaga Muriuki
  7. 7.The Applicant awarded the costs of the suit together with interest thereon at court rates; the Land Registrar (2nd Respondent) not to bear 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 of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act; rectification jurisdiction under Sections 79 and 80 of the Land Registration Act, No. 3 of 2012

Relief refused

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Relief against the 2nd Respondent (County Land Registrar) in costs

The Registrar acted within statutory powers by entering a Section 76 restriction

Costs

The Applicant shall have the costs of the suit, together with interest thereon at court rates, by virtue of the Originating Summons dated 13th March 2019; the 1st Respondent to bear costs; the 2nd Respondent (Land Registrar) not to bear costs absent evidence of complicity.

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.

THAT Judgment be and is hereby entered in favour of the Applicant in respect to the Originating Summons dated 13th March 2019, with costs.
p. 114Final orders - judgment for the Applicant
THAT the Certificate of Lease dated 2nd March 2018 registered in favour of the 1st Respondent, purporting to grant a 99-year term from 1st June 1970 over Title No. CR.13827/1 – Sub - division No. 1618 of Section 1 Mainland North, Mombasa County, be and is hereby declared null and void.
Final orders - nullity of lease
THAT the 2nd Respondent, the County Land Registrar Mombasa, do and is hereby directed to rectify the land register by cancelling the fraudulent entries relating to the purported lease in favour of the 1st Respondent and restoring the register to reflect the Applicant’s ownership.
p. 115Final orders - rectification of register
THAT an order do and is hereby issued for a Permanent Prohibitory Injunction restraining the 1st Respondent, whether by himself, his servants, agents, employees, or anyone claiming under him, from entering upon, re-entering, trespassing onto, laying a claim to, building on, interfering with, and/or in any manner whatsoever dealing with the Applicant’s property
p. 115Final orders - permanent injunction
The lease entry registered in March 2018 is therefore tainted by irregularity and, on the present record, by fraud or misrepresentation, and the Section 76 restriction properly remains a live protective measure pending rectification.
p. 87Fraud on the register
The 1st Respondent did not exercise reasonable due diligence before relying on the Power of Attorney and registering the lease; he therefore cannot safely claim the protection of a bona fide purchaser without notice.
p. 102Bona fide purchaser for value without notice
the Doctrine of Res Judicata as stipulated under the provision of Section 7 of the Civil Procedure Act, Cap. 21 does not apply in his case.
p. 87Res judicata
Thus, the Court proceeds to make the following specific orders:
p. 114Disposition

Issues in the judgment

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minor

The judgment is dated 23rd March 2026, while the site visit report in the judgment is dated 23rd May 2025 yet records a direction that judgment would be rendered on 20th June 2025; the chronology within the judgment is internally inconsistent.

minor

The analysis section refers to 'the Plaintiff and 1st, 2nd & 3rd Defendants' although the suit has only two Defendants (Caffini Pierluigia and the County Land Registrar).

minor

The 1st Defendant's Replying Affidavit is inconsistently dated within the judgment: the Originating Summons is described as 'dated 13th March 2020' in the affidavit narrative although the suit was instituted by an Originating Summons dated 13th March 2019.

minor

The Applicant's submissions describe the transmission by a Deed of Assent on '11th March 2017' whereas the pleadings and affidavit state 10th March 2017.

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, "Oyigo v Pierluigia & another (Civil Suit 41 of 2019) [2026] KEELC 1877 (KLR)", Case Analysis (2026). Civil Suit No. 41 of 2019 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1877/eng@2026-03-23

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