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ELCAllowedLand Case No. 287 of 2012· [2017] KEELC 1011 (KLR)

Ali Hassan Chisonzo & 3 others v Jane Ciarunji Chesaina & 4 others [2017] KEELC 1011 (KLR)

Environment and Land Court
17 November 2017
AOA. OMOLLOLKL. KOMINGOI
1,363 words in judgment
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The bottom line

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Kenya's Environment and Land Court cancelled fraudulently obtained Diani land titles, ruling that ancestral occupants hold overriding interests that defeat even registered owners.

What this practically means

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Executive summary

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Four plaintiffs sued five defendants in the Environment and Land Court at Mombasa seeking cancellation of titles Kwale/Diani/1955–1974 (originating from plot No. Kwale/Diani/477) and registration of the titles in their names, plus a declaration that the registration was obtained through fraud. The 1st–3rd defendants did not enter appearance despite service by newspaper advertisement, and interlocutory judgment was entered against them. The 4th (the land registry/State) and 5th defendants filed a defence denying the fraud particulars and putting the plaintiffs to strict proof, but called no evidence. The 1st plaintiff testified that the suit plot was ancestral land on which he had lived over twenty years, that he and his neighbours had complied with adjudication requirements, and that after they were acquitted of forcible detainer in Criminal Case No. 949 of 2008 the defendants had fenced the land. The court found the plaintiffs' evidence unchallenged, held that the 1st defendant's registration over land in the plaintiffs' possession was in trust for them under section 28 of the Land Registration Act, and that her questioned title could not pass good title to the 2nd and 3rd defendants, who also offered no explanation of their acquisition. Invoking sections 26, 28 and 80(1) of the Land Registration Act, the court declared the registrations irregular, cancelled the titles, ordered the 4th defendant to register the 1st–4th plaintiffs as owners of the suit titles, and awarded the plaintiffs costs.

Key legal issues

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01

Whether the plaintiffs proved their claim of fraud and irregular acquisition of title

Holding

Yes - the plaintiffs' unchallenged evidence established ancestral possession and that the defendants' titles were irregularly obtained; the court invoked sections 26, 28 and 80(1) of the Land Registration Act.

Reasoning

The plaintiffs' testimony that the suit plot was their ancestral land was unchallenged; the 1st–3rd defendants did not enter appearance and interlocutory judgment was entered against them. The 4th and 5th defendants offered no evidence that the titles issued within the law. The court found the registration was obtained by fraud or mistake, triggering its rectification powers under section 80(1) and the overriding interests under section 28.

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02

Whether the 1st defendant could pass good title to the 2nd and 3rd defendants

Holding

No - a defective title cannot pass good title to subsequent transferees, and the 2nd and 3rd defendants gave no explanation of their acquisition.

Reasoning

The plaintiffs relied on section 26 and 28 of the Land Registration Act to urge cancellation since the 1st defendant could not pass good title. The court agreed that with the 1st defendant's title questioned and unrebutted, she had no good title to pass. The 2nd and 3rd defendants also failed to appear and explain how they acquired their titles from the 1st defendant.

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Legal principles established

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  • Where a registration is questioned and no evidence is offered to rebut the challenge, the titleholder has no good title to pass to transferees.
  • A registered owner who obtains title over land in occupation of persons claiming ancestral interest holds in trust for them under section 28(b) of the Land Registration Act.

Court orders

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  1. 1.A declaration that the registration of parcel No 477 and the subsequent titles Nos 1955 – 1974 was irregularly obtained by the 1st – 3rd defendants
  2. 2.An order cancelling the registration of the 1st defendant as owner of title No Kwale/Diani/477 and the transfer to the 2nd & 3rd defendants of the subsequent titles Nos Kwale/Diani/1955 – 1974
  3. 3.An order directed at the 4th defendant to register the 1st – 4th plaintiffs as owners of suit titles Kwale/Diani/1955 – 1974 (all numbers inclusive)
  4. 4.Costs of the suit awarded to the plaintiffs

Authorities

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Legislation

  • Penal Codesection 91
  • Land Registration Act No 3 of 2012section 26
  • Land Registration Act No 3 of 2012section 28
  • Land Registration Act No 3 of 2012section 80(1)

Cases cited (2)

  • PAG (Bahati) & 2 others vs Peter Gathengu & 9 others
    (2011) eKLR
  • Alice Chemutai Too as Personal Representative of Kipkoech Tele vs Nikson Kipkurui & 2 others
    (2016) eKLR
Jurisdiction invoked
Sections 26, 28 and 80(1) of the Land Registration Act No. 3 of 2012

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, "Ali Hassan Chisonzo & 3 others v Jane Ciarunji Chesaina & 4 others [2017] KEELC 1011 (KLR)", Case Analysis (2017). Land Case No. 287 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1011/eng@2017-11-17

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