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ELCPartially AllowedELC Case No. 292 of 2015· [2017] KEELC 832 (KLR)

Naphtali Ngalwa Bulimu v Elijah Kihinji Ng’alwa [2017] KEELC 832 (KLR)

Environment and Land Court
16 November 2017
NMN.A. Matheka
1,752 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court cancelled a brother's title to family land, ruling his 1975 registration was fraudulent because he never lived on or developed the property.

What this practically means

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Executive summary

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The plaintiff sued his brother, the defendant, claiming to be the rightful owner of land parcel KAKAMEGA/BUGINA/232 measuring 1.4 hectares, which he said was given to him by their late father, Jacob Ngalwa Bulimu. He alleged the defendant fraudulently intermeddled with the estate by using forged or false documents to have the parcel registered in the defendant's name, and sought cancellation of the transactions and registration of the title in his own name. The plaintiff (PW1) and his adult children (PW2, PW3) testified that he had long occupied the parcel with his parents, built a permanent house, installed electricity and planted tea, and buried family members there. The defendant (DW1) conceded that their father subdivided the land in 1975 but claimed plot 232 was his, and that the plaintiff occupied it only under an understanding that the plaintiff would purchase plots 230 and 231 from his brothers. Alleging breach of that understanding, the defendant lodged a counter-claim seeking to have the plaintiff vacate plot 232 or surrender 0.6 hectares so that he would hold 1.4 hectares. The court applied sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra case on the two grounds for challenging title. Finding that the defendant was registered as proprietor on 24 July 1975 yet never resided on the parcel while the plaintiff and his family lived there, the court believed the plaintiff, held the registration was fraudulent, dismissed the counter-claim, cancelled all transactions on the parcel, ordered the title reverts to the plaintiff, and directed each party to bear its own costs. Judgment delivered at Kakamega on 16 November 2017.

Key legal issues

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01

Whether the defendant's title to plot 232 was vitiated by fraud

Holding

The court found the defendant fraudulently registered himself as proprietor of plot 232, on which he never resided, and the plaintiff proved fraud on a balance of probabilities

Reasoning

The certificate of register showed the defendant was registered as proprietor of plot 232 on 24 July 1975, yet the plaintiff resided on the parcel, buried his parents and wife there, and had made substantial investments including a permanent house, electricity and tea. The court believed the plaintiff and found the defendant's registration of himself as proprietor of a parcel in which he was not residing was mischievous and fraudulent, bringing the title within the proviso to section 26(1) of the Land Registration Act.

p. 3
02

Whether the defendant's counter-claim based on an alleged purchase agreement had merit

Holding

The counter-claim seeking surrender of plot 232 or 0.6 Ha thereof was dismissed

Reasoning

The defendant alleged an understanding that the plaintiff would purchase plots 230 and 231 so as to consolidate the deceased's land, and that the plaintiff was in breach. The court found the defendant already had his own parcel (plot 230) on which he resided, and his demand for a bigger share was unjustified given the fraudulent manner in which he had acquired registration of plot 232. The counter-claim was therefore without merit.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • 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 proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.All transactions registered on Land Parcel No. KAKAMEGA/BUGINA/232 at the Land Registry be cancelled and the title reverts and or registered in the plaintiff's name
  2. 2.Each party to bear its own costs
  3. 3.Counter-claim dismissed

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 ownership and registration of land (Environment and Land Court Act)

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, "Naphtali Ngalwa Bulimu v Elijah Kihinji Ng’alwa [2017] KEELC 832 (KLR)", Case Analysis (2017). ELC Case No. 292 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/832/eng@2017-11-16

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