Joseph Madigo Ogada v Hudson Wasike & another (sued as a representative of Emoru Friends Monthly Church) [2016] KEELC 513 (KLR)
The bottom line
#The Environment and Land Court in Kitale ordered defendants to vacate land they had encroached on by 0.1 of an acre, confirming the owner's title was valid despite late registration.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants encroached on the plaintiff's registered land
Plaintiff proved encroachment of 0.1 of an acre on a balance of probabilities and is entitled to eviction.
The plaintiff was the registered owner with a title, sale agreement, Land Control Board consent, mutation forms and transfer. The County Surveyor's report found the plaintiff occupying 1.4 instead of 1.5 acres, with building materials and structures on the disputed portion. The defendants produced no contradicting survey report and the second defendant admitted accumulating building materials on the disputed portion.
Validity of registration of the transfer after the vendor's death
Registration was effective because the deceased had completed all legally required steps before death.
The first defendant challenged the plaintiff's registration as having been effected after the deceased's demise. The court held that the deceased had subdivided the land, obtained consent to transfer and signed the transfer during his lifetime; the property therefore vested in the plaintiff and the timing of lodging and registration was immaterial, relying on the Nyeri Court of Appeal decision.
Legal principles established
#- Where a vendor has done all that is required under the law (subdivision, consent to transfer, signed transfer) before death, the property vests in the purchaser notwithstanding that registration was effected after the vendor's death.
Court orders
#- 1.An order of eviction do issue directing eviction of the defendants or their agents from LR No. Trans Nzoia/Emoru/138
- 2.The illegal structures on the suitland should be removed
- 3.The defendants to pay costs of this suit to the plaintiff
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court) - as inferred from the court's subject matter; not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Madigo Ogada v Hudson Wasike & another (sued as a representative of Emoru Friends Monthly Church) [2016] KEELC 513 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/513/eng@2016-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.