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ELCAllowedELC Case No. 439 of 2017 (formerly Machakos ELC No. 202 of 2015)· [2017] KEELC 627 (KLR)

Shadrack Kuria Kimani v Stephen Gitau Nganga & another [2017] KEELC 627 (KLR)

Environment and Land Court
6 December 2017
COChristine Ochieng
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a registered Certificate of Lease beats an old allotment letter, and evicted the occupants who couldn't prove ownership.

What this practically means

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Executive summary

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The plaintiff sued the defendants for a declaration of ownership of Ngong Town Block 2/851, their removal, a permanent injunction and costs. He relied on a Certificate of Lease dated 21st August 2015 for plot 188/Ngong Township, a letter of allotment from the County Council of Kajiado, confirmation letters from the Council and the Ministry of Lands, and a surveyor's report, alleging the defendants had trespassed by erecting a tin structure and using the land as a dumpsite. The defendants filed a joint defence claiming ownership through a letter of allotment dated 28th May 1992, asserting the plaintiff's lease was fraudulently obtained, but they did not attend the hearing and adduced no evidence. The court framed five issues: proprietorship, encroachment, permanent injunction, eviction and costs. Applying section 26(1) of the Land Registration Act, the court held the plaintiff's Certificate of Lease constituted prima facie evidence of absolute and indefeasible ownership, unchallenged by any proof of fraud. It applied Stephen Mburu v Comat Merchants to hold a letter of allotment is not a document of title, and Ahmed Ibrahim Suleiman v Noor Khamisi Surur and Willy Kipsongok Morogo v Albert K. Morogo on the statutory protection of registered proprietors. Finding the presence of temporary structures itself proof of trespass, the court entered judgment for the plaintiff: a declaration of ownership, removal of the defendants, a permanent injunction, and costs of the suit to the plaintiff. Judgment delivered at Kajiado on 6th December 2017 by Christine Ochieng, Judge.

Key legal issues

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01

Whether the Plaintiff is the legal proprietor of the suit land

Holding

Yes - the Certificate of Lease issued to the Plaintiff under section 26(1) of the Land Registration Act is prima facie evidence of absolute and indefeasible ownership, and the Defendants failed to prove their allegations of fraud

Reasoning

The Plaintiff produced a Certificate of Lease and supporting letters from the County Council of Kajiado and the Ministry of Lands confirming his registration as owner of plot 188/Ngong Township. Section 26(1) of the Land Registration Act renders the certificate prima facie evidence of indefeasible title. The Defendants alleged the lease was fraudulently obtained but, being absent at trial, adduced no evidence to prove the allegation. Their letters of allotment, being not titles, could not override the registered lease.

p. 3
02

Whether the Defendants have encroached on the suit land

Holding

Yes - the erection of a tin structure and use of the land as a rubbish dump without the Plaintiff's consent constituted trespass

Reasoning

PW1 testified that the Defendants interfered with his quiet possession by putting up a tin structure, blocking access to his surveyors and using the land as a dumpsite. The court held that the presence of temporary structures on the land was itself proof of trespass. The registered owner's rights under section 24(a) of the Land Registration Act vest exclusive rights and privileges which no person may interfere with.

p. 3
03

Whether the Defendants should be removed and permanently restrained

Holding

Yes - having failed to prove ownership, the Defendants are in illegal occupation and must be removed, with a permanent injunction issuing against them

Reasoning

The court found the Defendants were occupying the suit land illegally since they had not proved ownership. Their letters of allotment were held to be superseded by the Plaintiff's Certificate of Lease, it being trite law that a letter of allotment is not a document of title. Eviction and permanent injunction followed as remedies protecting the registered proprietor's quiet possession.

p. 4

Legal principles established

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  • A certificate of title/lease is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, illegality or corruption
  • A letter of allotment is not a title to property
  • Registration as proprietor vests absolute ownership of land together with all rights and privileges appurtenant thereto

Court orders

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  1. 1.Declaration that the Plaintiff is the registered owner of Ngong Town Block 2/851
  2. 2.The Defendants, their servants, agents and/or whosoever be removed from the suit land Ngong Town Block 2/851
  3. 3.A permanent injunction issued against the Defendants restraining them from trespassing, encroaching, wasting or denying the Plaintiff access to the suit land
  4. 4.The Plaintiff awarded the costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24(a)
  • Land Registration ActSections 24, 25 and 26

Cases cited (3)

  • Stephen Mburu & 4 Others vs Comat Merchants Ltd & Anor
    [2012] eKLR
  • Ahmed Ibrahim Suleiman and Another vs. Noor Khamisi Surur
    (2013) eKLR
  • WILLY KIPSONGOK MOROGO v ALBERT K. MOROGO
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shadrack Kuria Kimani v Stephen Gitau Nganga & another [2017] KEELC 627 (KLR)", Case Analysis (2017). ELC Case No. 439 of 2017 (formerly Machakos ELC No. 202 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/627/eng@2017-12-06

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