David Owino Okong’o v Mary Keke & 3 others [2017] KEELC 3006 (KLR)

The 3rd defendant produced a sale agreement dated 30th June 1980, paid the purchase price and took possession, whereupon the deceased and his family vacated. The deceased never challenged the 3rd defendant's possession until his death in 2009. The D.O's arbitration found a sale had occurred, and the conduct of the deceased was consistent with a sale. The absence of the original title did not disprove the sale since a registrar could dispense with production of the title deed.

The D.O's award was filed and adopted as judgment of the Senior Resident Magistrate's Court at Kisii in Misc. App. No. 22 of 1986; the court directed execution of transfer documents and the Executive Officer executed the transfers and mutation. The abstract of title showed parcel 155 was closed on 15th December 1989. Even if the original title was not surrendered, the omission could not invalidate a subdivision properly executed under a court order.

The 3rd defendant was the registered owner of parcel 901 and could not trespass on his own land. The 1st and 2nd defendants adduced credible evidence that they own and farm parcel 163, adjacent to 901, as shown by the survey map. There was no evidence they cultivated on what used to be parcel 155. The 4th defendant stated he carried on fish farming on his own parcel 174.

The 3rd defendant took possession in 1980 and was registered in 1989; the deceased died in 2009 about twenty years later without attempting to recover the land, and the plaintiff only sued in 2012 after his father's death. The twelve-year limitation period had long expired. The court held the law does not aid the indolent.

Fraud must be specifically pleaded and proved to a standard above a balance of probabilities. The plaintiff merely alleged the defendants' documents were forgeries but offered no proof. The documents relied on by the 3rd defendant were public documents admissible as proof of their contents absent rebutting evidence.