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ELCPartially AllowedELC Case No. 429 of 2012· [2017] KEELC 1228 (KLR)

Nancy Wairimu Karenju v Lucia Wanjiku Kamau [2017] KEELC 1228 (KLR)

Environment and Land Court of Kenya
28 September 2017
EOE. O. Obaga
549 words in judgment
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The bottom line

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A Kenyan court confirmed that inheriting land through succession gives you an indefeasible title, and ordered the occupant's eviction, but refused compensation for past occupation.

What this practically means

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Executive summary

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The plaintiff, an administrator of the estate of the late Paul Karenju Wambugu, who was the lessee of LR No. Nairobi/Block 117/53 (the suit land), sued the defendant seeking her eviction from the suit land. Succession was processed in Nairobi High Court Succession Cause No. 1756 of 2003; the grant issued on 27 August 2003 and was confirmed on 10 March 2010, after which the plaintiff was registered as owner by transmission, with a certificate of lease issued on 7 June 2010. The plaintiff testified that from 2002 the defendant fenced the suit land and erected structures on it, and refused to vacate despite demands. The defendant, though served with a hearing notice through her advocate, neither appeared nor was represented at the hearing, which proceeded ex-parte. The plaintiff's evidence was thus uncontroverted; she produced the grant and confirmed grant, a Ministry of Lands extract showing registration in the deceased's name, a copy of the lease, her certificate of lease and a further Ministry of Lands extract showing registration in her name. The court held, applying section 26 of the Land Registration Act, that a certificate of title issued upon transfer or transmission is prima facie evidence of absolute and indefeasible ownership, and found that the plaintiff had proved ownership on a balance of probabilities. The claim was allowed in terms of prayers (a) and (c) of the plaint, entailing the defendant's eviction, but the prayer for mesne profits was rejected for want of any evidential basis. The judgment was delivered in the absence of the parties, who were aware of the delivery date.

Key legal issues

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01

Proof of ownership of land acquired by transmission following succession

Holding

The plaintiff, registered as owner by transmission upon confirmation of the grant, proved ownership on a balance of probabilities and her title is indefeasible

Reasoning

The plaintiff was an administrator of the deceased lessee's estate; grant issued 27 August 2003 and confirmed 10 March 2010; she was registered as owner by transmission with a certificate of lease issued 7 June 2010. Her evidence, supported by the grant, confirmed grant, Ministry of Lands extracts and copy of lease, was uncontroverted as the defendant failed to appear at the ex-parte hearing. Section 26 of the Land Registration Act renders her certificate of title prima facie evidence of absolute and indefeasible ownership, with no encumbrances shown.

p. 2
02

Entitlement to mesne profits

Holding

Mesne profits were refused because no basis for them was laid

Reasoning

Although the plaintiff sought mesne profits, she did not lay any evidential basis quantifying or justifying them. The court therefore allowed the claim only in terms of prayers (a) and (c) of the plaint and rejected the mesne profits prayer.

p. 2

Legal principles established

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  • A certificate of title issued upon transfer or transmission is prima facie evidence that the named proprietor is the absolute and indefeasible owner of the land

Court orders

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  1. 1.The plaintiff's claim allowed in terms of prayer (a) and (c) of the plaint (eviction of the defendant from the suit land)
  2. 2.The prayer for mesne profits rejected

Authorities

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Legislation

  • Land Registration ActSection 26
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (original first-instance suit)

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, "Nancy Wairimu Karenju v Lucia Wanjiku Kamau [2017] KEELC 1228 (KLR)", Case Analysis (2017). ELC Case No. 429 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1228/eng@2017-09-28

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