Kenya Anti-Corruption Commission v Julius Mwamsae Mohamed Mahfudh & 3 others [2011] eKLR
Case Caption:
In the High Court of Kenya at Mombasa (Coram; Ojwang, J.); Civil Suit No. 8 of 2008; Kenya Anti-Corruption Commission (Plaintiff) v Julius Mwamsae Mohamed Mahfudh, Isaac Munyi Njeru & Kenneth K. Githii (1st – 4th Defendants respectively)
A title to land is subject to challenge on grounds of fraud or illegality.
Applicable laws:
Section 27 (b) of the Registered Land Act Cap 300; Laws of Kenya
Brief Facts:
The Plaintiff instituted a suit against the Defendants for recovery of a parcel of land known as L.R. No. Mombasa Island/Block XI/983 that was illegally/irregularly allocated to them. The Plaintiff prayed for orders inter alia, a declaration that the subject property was unlawfully acquired, cancellation of the Defendants’ interests in the property and for eviction of the Defendants from the land.
The Applicant in this matter (2nd Defendant) approached the court seeking a striking out of the suit against them on the grounds that the verifying affidavit was not sworn by the Plaintiff’s officer but by a process server without personal knowledge of the matters in the plaint, that the plaint does not provide particulars of fraud by the 2nd Defendant and that the suit is an abuse of process as the 2nd Defendant’s title cannot be challenged per Section 26 of the Registered Land Act (Repealed).
Issues for Determination:
I. Whether the verifying affidavit was correctly sworn
II. Whether the 2nd Defendant’s title can be challenged
Holding:
On the issue of the affidavit’s swearing, the Plaintiff submitted that the party who swore the affidavit was the person in the best position to verify the correctness of the facts in it as he participated in the investigation. Further, the court noted that Dedan Okwama, the party who swore the affidavit, had also sworn a replying affidavit responding to the 2nd Defendant. In it, he stated that he was an investigating officer with the Kenya Anti-Corruption Commission [Plaintiff], duly appointed as such under s. 23 (1) of the Anti-Corruption and Economic Crimes Act, 2003 (Act No. 3 of 2003) and holds the position of Legal Assistant, with authority to effect service of process. He further swore that he was a member of the investigative team tasked with investigating the Defendants. Therefore, he was competent to swear the affidavit. The court held that it was correctly sworn.
On the issue of the 2nd Defendant’s title, the court noted that the suit property was a road reserve and thus not available for alienation. The 2nd Defendant relied on the doctrine of indefeasibility of tittle under the Registered Land Act. However, as per the court in Chauhan v. Omagwa [1985] KLR 656, once fraud is proved against 1st registered owner, it ceases to be relevant that no wrong-doing can be established in relation to the transferee: the transfer is void, as the transferee has no better title than that which was held by the transferor. Therefore, the 2nd Defendant’s title was subject to challenge on grounds of fraud. The Plaintiff also contended that there was sufficient evidence to warrant the matter proceeding to trial.
The court held that the allegation that the 2nd Defendant dishonestly appropriated public land gave rise to an ex facie, a serious cause of action in light of which the 2nd Defendant’s application failed.
