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ELCPartially AllowedNotice of Motion dated 23rd October 2015 (arising from plaint dated 4th October 2011)· [2016] KEELC 703 (KLR)

Michael Odera Otom (Suing as the Administrator of the Estate of Thomas Otom Ogullo v Commissioner for Lands & 2 other [2016] KEELC 703 (KLR)

Environment and Land Court
6 July 2016
SKS.M. Kibunja
998 words in judgment
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The bottom line

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A Kenyan court stopped a claimant from building on disputed land while his ownership challenge awaits trial, because the registered owner's title is protected by law.

What this practically means

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Executive summary

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The 3rd Defendant, Kisumu Teachers Sacco Company Limited, moved the Environment and Land Court by notice of motion dated 23rd October 2015 seeking a temporary injunction to restrain the plaintiff, suing as administrator of the estate of Thomas Otom Ogullo, from entering, constructing on or developing land known as Grant No.83689, L.R. No.16344, Survey Number 228781. The plaintiff opposed the application by replying affidavit sworn on 13th November 2015, contending among other things that construction on the land had been approved by the National Construction Authority. The plaintiff's substantive suit, filed by plaint dated 4th October 2011, challenges the 3rd Defendant's title to the land as ancestral land, while the 3rd Defendant maintains its title is indefeasible. Relying on Section 26(1) of the Land Registration Act (and its analogue in the repealed Registration of Titles Act), the court held that a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only for fraud or misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. It found that the plaintiff's challenge to title could only be resolved at the hearing of the main suit, and at the interlocutory stage it took the 3rd Defendant as absolute and indefeasible owner. Since construction of a permanent structure had commenced on the suit land without the registered proprietor's consent or the court's authority, the court allowed the application and issued a temporary injunction restraining new or continued structural development pending the hearing and determination of the suit, with costs of the application in the cause. The judgment was delivered by S.M. Kibunja, Judge, on 6th July 2016.

Key legal issues

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Whether a temporary injunction should issue against a plaintiff challenging the defendant's title while construction proceeds on the suit land

Holding

The 3rd Defendant established a good case for a temporary injunction; the court at interlocutory stage treats the registered proprietor as the absolute and indefeasible owner, and the plaintiff's title challenge can only be resolved at the hearing of the main suit

Reasoning

Section 26(1) of the Land Registration Act renders the registered proprietor's title prima facie and indefeasible, subject only to challenge on fraud, misrepresentation, illegality, unprocedural acquisition or corruption. The court cannot determine the plaintiff's challenge at the interlocutory stage. The plaintiff had commenced construction of a permanent structure on the suit land without the registered proprietor's consent and without the court's authority, while the suit was pending, warranting an injunction to preserve the status quo pending trial.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.Temporary order of injunction issued restraining the Plaintiff, his agents, servants, employees and any persons claiming under his authority from carrying out any new structural development or continuing with any structural construction on Land parcel L.R. 16344, Grant No.83689, Survey Plan Number 228781, pending the hearing and determination of the case
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Land Registration Act No. 3 of 2012Section 26(1)
  • Registration of Titles Act, Chapter 281 of Laws of Kenya (repealed)Section 23(1)
Jurisdiction invoked
First-instance civil jurisdiction of the Environment and Land Court under the Land Registration Act No. 3 of 2012 (Section 26(1)) in relation to suit land L.R. No. 16344, Grant No. 83689

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Michael Odera Otom (Suing as the Administrator of the Estate of Thomas Otom Ogullo v Commissioner for Lands & 2 other [2016] KEELC 703 (KLR)", Case Analysis (2016). Notice of Motion dated 23rd October 2015 (arising from plaint dated 4th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/703/eng@2016-07-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.