[2018] KEELC 1946 (KLR)
The court found that the transfer of the suit property to the 1st Defendant had already been cancelled by the Land Registrar upon discovery of the fraudulent transaction. The original certificate of title confirmed the cancellation. As a result, the estate of Francis Ndungu Kimani remained the registered owner of...
Source-derived case information.
- Citation
- [2018] KEELC 1946 (KLR)
- Parties
- Plaintiff: Kenneth Kimani Ndungu; Plaintiff: Florence Waithera Ndungu (suing for and on behalf of the estate of Francis Ndungu Kimani); Defendant: Upstate Investment Limited; Defendant: Registrar of Titles; Defendant: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 602 of 2010
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- suit dismissed
- Judges
- AK Bor
- Legal Topics
- Fraudulent Transfer, Land Registration, Cancellation of Title, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Kimani Ndungu
Plaintiff
Florence Waithera Ndungu (suing for and on behalf of the estate of Francis Ndungu Kimani)
Plaintiff
Upstate Investment Limited
Defendant
Registrar of Titles
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the transfer of L.R. No. 133330/389 to the 1st Defendant was fraudulent and without the consent of the registered proprietor.
- 2 Whether the Estate of Francis Ndungu Kimani is entitled to a declaration of ownership of the suit land.
- 3 Whether the Plaintiffs are entitled to a permanent injunction restraining the 1st Defendant from dealing with the suit land.
Ratio Decidendi
The court found that the transfer of the suit property to the 1st Defendant had already been cancelled by the Land Registrar upon discovery of the fraudulent transaction. The original certificate of title confirmed the cancellation. As a result, the estate of Francis Ndungu Kimani remained the registered owner of the property, and there was no longer any live issue for determination. The Plaintiffs' claims for declaratory and injunctive relief were rendered moot, and any claim for damages was not substantiated against the Defendants, as the alleged wrongful act had been rectified administratively. The suit was therefore dismissed, with each party bearing its own costs.
Court Disposition
suit dismissed
Orders
- The suit is dismissed.
- Each party will bear its own costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
E.L.C. CASE NO. 602 OF 2010
KENNETH KIMANI NDUNGU......................1ST PLAINTIFF
FLORENCE WAITHERA NDUNGUSUING FOR
ANDON BEHALFOF THEESTATE OF
FRANCIS NDUNGU KIMANI.......................2ND PLAINTIFF
VERSUS
UPSTATE INVESTMENT LIMITED..........1ST DEFENDANT
REGISTRAR OF TITLES............................2ND DEFENDANT
THE HON. ATTORNEY GENERAL..........3RD DEFENDANT
JUDGEMENT
1. The Plaintiff’s claim is that on or about the 29/10/2008, the 2nd Defendant colluded with the 1st Defendant and transferred L.R. No. 133330/389 to the 1st Defendant without the consent of Francis Ndungu Kimani, the registered proprietor. The Plaintiffs seek a declaration that the Estate of Francis Ndungu Kimani (deceased) is the registered owner of the suit land. They also seek a permanent injunction to restrain the 1st Defendant from selling, transferring, constructing or in any way dealing with the suit land.
2. In its defence filed on 13/4/2011, the 1st Defendant denied the Plaintiff’s claim and averred that it was the lawful owner of the Suit Property. The 2nd and 3rd Defendants also denied the Plaintiff’s claim and averred that if the 2nd Defendant transferred the Suit Property, then it was done legally.
3. The 2nd Plaintiff gave evidence in the case. She stated that her late father learnt in June 2009 that a stranger had commenced construction on his plot. On conducting a search, it emerged that a fraudster by the name Anthony Njoroge Ciera alias Francis Ndungu Kimani had purported to transfer the Suit Property to the 1st Defendant. During cross examination, she stated that she was not aware that the transfer to the 1st Defendant had been cancelled.
4. Edwin Munoko Wafula, a lands officer gave evidence for the 2nd and 3rd Defendants. He stated that the transfer of the Suit Property to the 1st Defendant was done lawfully and in good faith. Upon being notified by the Plaintiff of the fraudulent transfer, the Land Registrar proceeded to cancel the transfer to avert registration of any dealings on the land. He maintained that the lands officers exercised due diligence and that the Plaintiffs’ claim for damages should be directed at the advocates who registered the transaction. He produced a copy of the original certificate of title kept at the lands office on which entries are normally made which confirmed that the transfer to the 1st Defendant registered on 29/10/2008 had been cancelled.
5. That being the case, there is no issue for determination. The suit is dismissed. Each party will bear its own costs.
Dated and delivered at Nairobi this 30th day of August 2018.
K. BOR
JUDGE
In the presence of: -
Mr. J.N. Maina holding brief for Mr. Wachira for the Plaintiff
Mr. Kamau for the 2nd and 3rd Defendants
Mr. V. Owuor- Court
No appearance for the 1st Defendant