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ELCAllowedELC No. 265 of 2017· [2017] KEELC 772 (KLR)

Marko Okere Obunge v Andrew Odhiambo Shikawa [2017] KEELC 772 (KLR)

Environment and Land Court
14 November 2017
NMN.A. Matheka
825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's title deed was enough to win a permanent injunction against a neighbour who had occupied part of his land since 1994.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel NORTH/WANGA/INDANGALASIA/320, sued the defendant, son of the late Gabriel Shikawa Luchiri (registered owner of the neighbouring parcel), alleging that in 1994 the defendant encroached upon and occupied approximately one acre of the plaintiff's land, uprooting boundaries without knowledge and planting food crops. The plaintiff sought a permanent injunction restraining the defendant from occupying, ploughing or dealing with the suit land. The defendant was served but failed to enter appearance or file any papers; interlocutory judgment was entered on 24 August 2017 and the matter proceeded to formal proof. PW1, the plaintiff, testified to his ownership and the defendant's trespass, noting that efforts by the Land Registrar to resolve the boundary dispute were futile. The court applied Sections 24(a) and 26(1) of the Land Registration Act, holding that registration vests absolute ownership in the proprietor and that a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The court applied the Elijah Makeri Nyangw'ra decision on the protective shield of title. No evidence of fraud or of illegally acquired title was adduced. The court found the plaintiff's case proved on a balance of probabilities and granted a permanent injunction against the defendant, together with costs of the suit to the plaintiff.

Key legal issues

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01

Indefeasibility of registered title under the Land Registration Act

Holding

The plaintiff, as registered proprietor with a title deed, proved ownership and quiet possession; the title was not challenged on any of the statutory grounds for impugning it.

Reasoning

The court invoked Sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and render the certificate of title prima facie evidence of indefeasible ownership, subject only to challenge on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The defendant, who never entered appearance, adduced no such evidence. The plaintiff's title deed therefore remained unimpeached and the claim was proved on a balance of probabilities.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests in that person absolute ownership of the land together with all rights and privileges appurtenant thereto
  • A Certificate of Title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.A permanent injunction restraining the defendant by himself, agents, assignees or by whomsoever from occupying, ploughing and/or doing anything on land parcel No. NORTH/WANGA/INDANGALASIA/320
  2. 2.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Elijah Makeri Nyangw'ra -vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to and possession of land (Environment and Land Court Act); matter proceeded after interlocutory judgment on formal proof

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, "Marko Okere Obunge v Andrew Odhiambo Shikawa [2017] KEELC 772 (KLR)", Case Analysis (2017). ELC No. 265 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/772/eng@2017-11-14

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