Branwade Investments Kenya Ltd & 2 others v Davies & 2 others
High Court, at Nairobi February 28, 2000
Rawal, Commissioner of Assize
Civil Case No 2227 of 1998
Civil Practice and Procedure – res judicata – whether this can be pleaded where plaintiff alleges fraud resulting in previous consent judgments.
Land – registration land – under the Registration of Titles Act – when such registration can be challenged.
The application was brought under order XXXIX rules 1 to 3 of the Civil Procecure Rules to restrain the three defendants from selling, charging, mortgaging or transferring LR No 11694 and LR No 10262 or any portion thereof pending the hearing and determination of the suit.
The principal ground of the application was that the defendants, with the knowledge of the first plaintiff’s unregistered interest in the suit lands conspired to transfer the suit lands to the 3rd defendant, and if the latter transferred the suit lands or portion thereof to third parties, it shall defeat the plaintiffs’ interest. There had been previous suits involving one or the other of the defendants and thus the defendants pleaded the doctrine of res judicata.
Held:
1. The proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and allegation established by strict proof such a charge requires.
2. A fresh action challenging a consent judgment entered in a previous suit on the ground of fraud cannot be barred by a plea of res judicata in light of that consent judgment.
3. Fraudulent intent on the part of the purchaser is a ground for challenging title under section 23(1) of the Registration of Titles Act.
Injunction granted.
Cases
1. Mburu Kinyua v Gachini Tuti [1978] KLR 69
2. Gleeson v J Wippel & Co Ltd [1977] 3 All ER 54; [1977] 1 WLR 510
3. Giella v Cassman Brown & Co Ltd [1973] EA 358
4. Githunguri v Jimba Credit Corporation Ltd [1988] KLR 825
5. Kanyagia v Wangechi CA (Nai) No 150/1993
Statutes
1. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 1, 2, 3
2. Registration of Titles Act (cap 281) sections 2, 23(1); 24
3. Transfer of Property Act [INDIA] section 54
Advocates
1. Dr Kuria for the Plaintiffs
2. Mr Nyaogah for the Defendants