Omar Awadh Mbarak v Freedom Limited
The bottom line
#Kenya's Court of Appeal cancelled a company's land title, ruling long, peaceful possession beats a paper title of doubtful origin.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's and respondent's competing claims relate to the same property
The Court agreed with the trial court that both claims relate to one and the same property, despite unexplained disparities in the original number and the subsequent transactions.
The original property was Plot No. 287 Section V MN, 983 acres, registered as CR 6302/1. Both parties held original copies of the Certificate of Ownership dated 26th October 1923 certified by the same person; the only marked difference was that the appellant's copy contained only the first fourteen entries while the respondent's contained fifty-four. David Gibson first transferred to Mohamed Afzal Khan, after which various dealings changed the title number and size of the property.
What now constitutes the suit property
The property registered as CR 32564, Plot No. 1948 (Original No. 412/10) Section V Mainland North, constitutes the suit property, whose original number was altered from Original No. 287/3; the change from 287/3 to 412/10 is an irregularity that remains unexplained.
The record showed the property was first subdivided on 10th April 1956 into three subdivisions; 287/1 and 287/2 were awarded to the Crown and 287/3, measuring about 973 acres, remained with Mohamed Afzal Khan and was the property purchased by the deceased. Subsequent surrender of 16.19 hectares preceded issuance of CR 32564. The identity and size of the property to which the appellant lays claim had long changed, and the unexplained change in the original number raises questions about the respondent's root of title.
Whether the register reconstructed at the respondent's instance was properly reconstructed
The reconstruction was undertaken without the requisite Gazette Notice and purely on documents supplied by the respondent, shutting out the appellant and other potential objectors, thereby raising questions about the integrity of the reconstructed register.
Section 33(5) of the Land Registration Act mandates that the Registrar reconstruct a lost register only after necessary enquiries and sixty days' notice in the Gazette. Nothing on record suggested any Gazette Notice was published. The Registrar embarked on reconstruction purely on the respondent's documents despite knowledge that ownership was contested, and the DCI was investigating the original title. The postal search obtained after such defective reconstruction formed the basis of the trial court's holding, in disregard of the appellant's claim and the law.
Who, as between the deceased's estate and the respondent, has established seisin as the root of title
The deceased and his household had continuous and uninterrupted vacant possession for 22 years after purchase; the doctrine of seisin applied in favour of the deceased's estate and the respondent's title could not stand against it.
The deceased purchased the property in 1978, took vacant possession with his household for 22 years, and held the original Certificate of Ownership, Sale Agreement and unregistered Transfer. None of the parties named in entries 15 to 54 of the respondent's Certificate of Ownership ever challenged the deceased's occupation. The unregistered agreement and transfer were not bereft of legal effect, and the respondent's Certificate of Ownership, based on documents it alone supplied for the defective reconstruction, went against the doctrine of seisin and the deceased's constitutional right to property.
Whether the respondent's root of title stands
On the balance of probabilities the respondent's root of title is untenable; the respondent had to go beyond the instrument of title and prove the legality of its acquisition, which it failed to do.
Citing Dina Management and Munyu Maina, the Court held that establishing a good root of title is the first step to being a bona fide purchaser, and that a registered proprietor whose root of title is challenged must prove legality of acquisition. The respondent's Certificate of Title No. CR 32564 could only have been issued under the Registration of Titles Act if the land had been brought under that Act, but there was no evidence of any such endorsement; the Certificates of Ownership were issued under the Land Titles Ordinance, 1908. The unexplained change in original number and lack of transactional documents cast further doubt.
Whether the learned Judge was correct in allowing the respondent's suit and dismissing the counterclaim
The Judge's decision was made in error: she misinterpreted the two Gazette Notices and failed to pronounce on other issues, allowing the respondent's claim in the face of the doctrine of seisin.
The Judge's finding that the respondent proved its case rested on a Gazette Notice dated 25th January 1955 showing acquisition of 6.1 acres, and a second Gazette Notice allegedly showing the deceased died on 15th June 1967. The first was merely a declaration that part of the property was required for a public purpose; the second related to an application by Mohamed Afzal Khan of Mombasa for letters of administration of the estate of a different Mohamed Afzal Khan of Eldoret who died on 15th January 1967. The Judge also failed to query the absence of transactional documents supporting the entries and did not pronounce on other issues raised.
Legal principles established
#- All titles to land are ultimately based upon possession; the title of the man seised prevails against all who can show no better right to seisin, and possession is nine-tenths ownership.
- 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 the title was acquired.
- A certificate of title is prima facie evidence of ownership, defeasible on evidence of illegality, irregularity in its acquisition or corrupt dealing; the sanctity of title rests on integrity and the rule of law, not merely formal registration.
- Reconstruction of a lost or destroyed land register under section 33(5) of the Land Registration Act requires the Registrar to make necessary enquiries and give sixty days' notice in the Gazette before reconstruction; reconstruction based solely on documents supplied by one interested party, without notice, is improper.
- In ordinary cases the original number of a parcel of land remains unaltered despite subsequent subdivisions and transfer or surrender; an unexplained change in the original number casts doubt on the propriety of the root of title.
Court orders
#- 1.The appeal be and is hereby allowed as prayed
- 2.The judgment and decree of the Environment and Land Court at Mombasa delivered on 19th January 2022 in ELC Case No. 358 of 2016 be and is hereby set aside and substituted with an order dismissing the Respondent's suit with costs to the Appellant
- 3.The Appellant's Counterclaim dated 16th November 2018 is allowed: it is declared that the purported transfer of the suit property to the respondent on 12th November 2010 and irregularly registered as C.R. No. 32564 is null and void and of no effect
- 4.The certificate of title purportedly issued in favour of the respondent is likewise null and void
- 5.A declaration that the estate of the late Mbarak Awadh Salim is the beneficial owner of all that parcel of land measuring Nine Hundred and Seventy-Three (973) Acres or thereabouts known as Plot No. 287/3 Section V, Province of Seyidie, delineated on Deed Plan No. 21108
- 6.The appellant be at liberty to seek cancellation of the certificate of title purportedly issued to the respondent on 12th November 2010, and is entitled to registration of the suit property in favour of the estate of Mbarak Awadh Salim (Deceased) and to pursue issuance of a certificate of title to the deceased's estate
- 7.A mandatory injunction compelling the respondent, its servants or agents, to relinquish vacant possession of the suit property to the estate and to demolish or remove all surrounding walls, buildings and structures erected thereon within 45 days, failing which the appellant may undertake the demolition at the respondent's cost
- 8.An order of injunction restraining the respondent, its servants or agents from entering, taking possession of, or interfering with the suit property
- 9.The respondent do pay to the appellant general damages in the sum of KShs. 5,000,000
- 10.The respondent do bear the costs of the appeal together with interest thereon at court rates
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC Case No. 358 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1)(a) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (8)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Afrison Export Import Limited & 1 other v The National Land Commission & 8 others[2026] KECA 1257 (KLR)3 Jul 2026
- Igainya Ltd & 2 others v Godfrey Karuri Githae & 5 others[2026] KECA 252 (KLR)13 Feb 2026followed
- Kanyarkwat Group Ranch & 4 others v Joseph & 3 others (Environment and Land Case 38 (E034) of 2021 & 30 of 2017 (Consolidated)) [2026] KEELC 729 (KLR)[2026] KEELC 729 (KLR)11 Feb 2026applied
- Njuguna v Ndegwa; Trustees, Anglican Church of Kenya (Interested Party) (Environment and Land Case 39 of 2022) [2026] KEELC 661 (KLR)[2026] KEELC 661 (KLR)11 Feb 2026
- Susan Wangui & 1 other v Richard Karitu Nderitu[2026] KECA 124 (KLR)30 Jan 2026applied
- Oyugi & 2 others (Suing as the Administrators of the Estate of Hezekiah Nelson Oyugi - Deceased) v Sherman & another (Environment and Land Case Civil Suit 1517 of 1998) [2025] KEELC 5188 (KLR)[2025] KEELC 5188 (KLR)10 Jul 2025
- Jimmy Nathan Sambo & 1 other v Lucy Mayanka Mwakio & 1 other[2025] KECA 913 (KLR)23 May 2025applied
- Keshenke v Rune (Suing as the Administrator of the Estate of Palle Juel Rune) (Enviromental and Land Originating Summons 404 of 2017) [2024] KEELC 5751 (KLR)[2024] KEELC 5751 (KLR)29 Apr 2024applied
Cite this brief
#Cite this brief
Caselaw, "Omar Awadh Mbarak v Freedom Limited", Case Analysis (2024). Civil Appeal (from ELC Case No. 358 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/160/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.