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ELCPartially AllowedCase No 57 of 2014· [2017] KEELC 1017 (KLR)

Andrew Marita Kebaso & another v Christopher Getuno Onkeo [2017] KEELC 1017 (KLR)

Environment and Land Court
24 November 2017
JMJ. M. MUTUNGI
1,861 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisii Land Court ruled that a registered title deed wins over informal occupation, ordering the defendant to vacate land he had encroached on by 15 metres.

What this practically means

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Executive summary

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The plaintiffs, brothers and registered owners of land parcels West Mugirango/Bomanono/2262 and 2263, sued the defendant for trespass, seeking a permanent injunction and costs. They testified that their father subdivided parcel 1990 into six portions and transferred parcels 2262 and 2263 to them, producing the mutation form, consents and title deeds. The defendant denied trespass, asserting he had occupied the land since 1984 after purchasing two portions from the plaintiffs' father under agreements dated 20th September 1981 and 27th July 1984, though he admitted the agreements lacked parcel particulars and that no transfer had been effected. The parties jointly instructed an independent surveyor, whose report of 9th May 2017 confirmed the defendant occupies parcels 2264 and 2265 but had encroached onto the plaintiffs' parcels by about 49 feet (15 metres). The court framed four issues and found that the plaintiffs are the registered proprietors; that the defendant encroached onto their land; that his occupation of the encroached portions is unlawful; and that costs should follow the event. Applying sections 24, 25 and 26 of the Land Registration Act, 2012, the court held that registered owners enjoy absolute ownership and exclusive possession. The defendant's claim to parcels 2264 and 265 could not be entertained because the alleged vendor, the plaintiffs' father, was not a party and no counterclaim was pleaded. Judgment was entered for the plaintiffs: vacation and vacant possession, a permanent injunction, and costs.

Key legal issues

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01

Registered proprietorship of the suit parcels

Holding

The plaintiffs are the registered proprietors of parcels 2262 and 2263, evidenced by mutation, consents and title deeds, and confirmed by the defendant's own admission

Reasoning

The plaintiffs produced the mutation form subdividing parcel 1990 into six portions, consents to subdivide and transfer, and registered title deeds. The defendant admitted the plaintiffs are the registered owners. The first issue was answered in the affirmative.

p. 3
02

Encroachment and trespass

Holding

The defendant, occupant of parcels 2264 and 2265, had encroached onto parcels 2262 and 2263 by about 49 feet or 15 metres, constituting unlawful trespass

Reasoning

The independent joint surveyor's report of 9th May 2017 confirmed the defendant occupies parcels 2264 and 2265 but encroached about 15 metres onto the plaintiffs' parcels. No evidence showed the defendant's purchased plots were surveyed and identified on the ground before occupation.

p. 3
03

Lawfulness of the defendant's occupation and his remedy against a non-party

Holding

The defendant's occupation of portions of the plaintiffs' parcels is not lawful; any claim he has is against the plaintiffs' father, who is not a party, and no orders could be made in his favour absent a counterclaim

Reasoning

The defendant claimed to have purchased two portions from the plaintiffs' father under 1981 and 1984 agreements, but the land was never transferred to him. Since the father was not joined and no counterclaim was pleaded, the court could not order transfer of parcels 2264 and 2265 to him.

p. 3

Legal principles established

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  • Registered owners under sections 24, 25 and 26 of the Land Registration Act are vested with absolute rights of ownership and entitled to exclusive possession free from hindrance

Court orders

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  1. 1.That the defendant has unlawfully encroached onto the plaintiffs land parcels West Mugirango/Bomanono/2262 and 2263 and is ordered to vacate and yield vacant possession of the portion he has encroached into forthwith
  2. 2.A permanent injunction restraining the defendant, his agents and servants from trespassing or dealing in any way with the plaintiffs parcels of land number West Mugirango/Bomanono/2262 and 2263 respectively
  3. 3.The costs of the suit are awarded to the plaintiffs

Authorities

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Legislation

  • Land Registration Actsections 24, 25 and 26
Jurisdiction invoked
Original civil suit on land ownership and trespass (Land Registration Act, 2012); no specific constitutional provision stated

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Andrew Marita Kebaso & another v Christopher Getuno Onkeo [2017] KEELC 1017 (KLR)", Case Analysis (2017). Case No 57 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1017/eng@2017-11-24

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