Reuben Makau Mutindimi v John Chuaga Nganga

The green card showed the Plaintiff as first registered proprietor on 4th February 1997. He went beyond the instrument, giving a continuous account of allocation by Drumvale Farmers Co-operative Society, payment of survey and conveyance fees, survey, planting of beacons, possession from 1995 and cultivation until 2021, corroborated by his share certificate. The Defendant adduced no competing evidence to displace that account.

Fraud must be specifically pleaded and proved to a standard above balance of probabilities but below beyond reasonable doubt. The Plaintiff was registered proprietor immediately before the impugned transfer; no sale agreement, transfer instrument or consideration was produced, and the Plaintiff testified he never met the Defendant nor authorized the transfer. The unexplained transfer, uncontested by the Defendant who never entered appearance, met the required standard.

The Defendant's authority to deal with the land flowed from his registration, which was fraudulently procured. A person cannot pass a better title than he lawfully holds; the resultant parcels cannot acquire independent validity merely by registration. The Court of Appeal in Kimani v Sigona Jua Kali Association, which this Court is bound by, held that resultant titles from a defective root stand on quicksand and must go with the winds.

Cancellation of the transfer and subdivision, permanent injunction, rectification of the register and issuance of a title deed followed from the findings. Eviction was declined because occupants were unidentified and not shown to occupy under the Defendant; police supervision was declined as execution of a civil decree is the parties' responsibility; general damages for trespass failed for want of proof of the Defendant's personal occupation and pecuniary loss.