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ELCPartially AllowedKisumu/Marera suit arising from plaint dated 3rd May 2012 (case number not stated in judgment)· [2017] KEELC 3666 (KLR)

Hezbon Pande Nyaidho v Joel Okudo Ondu & 4 others [2017] KEELC 3666 (KLR)

Environment and Land Court
24 January 2017
2,124 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu ordered four family members to vacate land registered in the plaintiff's name, but refused to award him compensation for their occupation.

What this practically means

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Executive summary

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The Plaintiff sued the five Defendants seeking eviction from land parcel Kisumu/Marera/3406, mesne profits, and interests. His title derived from the Court of Appeal's decision of 11th July 2008 in Civil Appeal No. 174 of 2003, which declared that 2 hectares of Kisumu/Marera/2469 were held in trust for him and directed their transfer, with the Deputy Registrar empowered to execute documents. Pursuant to that order, the land was subdivided and parcel 3406 registered in the Plaintiff's name on 4th February 2011. The Defendants denied being on the land and sought dismissal. All five Defendants testified; DW4 had purchased a portion from the 3rd Defendant in 2009. The court conducted a site visit on 22nd June 2016 and observed the 1st, 2nd and 4th Defendants' houses and cultivated crops within the suit parcel. The court framed six issues and held that the Plaintiff's registration was procedural and regular, that his title had never been challenged under Section 26(1) of the Land Registration Act, and that his interest, emanating from the Court of Appeal decision, could only be questioned in that court or the Supreme Court. The Defendants, aware of the claim since the survey, took no action. Judgment was entered for the Plaintiff on a balance of probabilities: the 1st to 4th Defendants were ordered to vacate within ninety days, in default eviction to issue, and to pay the Plaintiff's costs through the court with court fees deducted. Mesne profits were refused on account of the close family relationship and the Defendants' moving expenses.

Key legal issues

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01

Validity of the Plaintiff's title to Kisumu/Marera/3406

Holding

The Plaintiff's registration was procedural and regular; he is the absolute proprietor and his title was never challenged under Section 26(1) of the Land Registration Act.

Reasoning

The Court of Appeal in Civil Appeal No. 174 of 2003 declared that the Respondent held 2 hectares of Kisumu/Marera/2469 in trust for the Plaintiff and directed transfer. Pursuant to that order, the land was subdivided and parcel 3406 registered in the Plaintiff's name on 4th February 2011. That order was never varied, set aside or successfully appealed, so the registration flowed lawfully from a binding superior court decree.

p. 3
02

Whether the Defendants have any right to occupy the suit land

Holding

They have none; the Plaintiff is entitled to vacant possession.

Reasoning

The Plaintiff's interest derives from the Court of Appeal decision and can only be challenged in that court or the Supreme Court; there was no such challenge. The Defendants were aware of the claim since the survey exercise or soon after but took no legal action. The 5th Defendant, administrator of the estate of Robert Ondugo Wambia, did nothing to assist the Plaintiff obtain possession. The proceedings merely give effect to the Court of Appeal decree.

p. 4

Legal principles established

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  • A registered proprietor whose title has not been challenged under Section 26(1) of the Land Registration Act is entitled to the rights and privileges of an absolute proprietor.
  • An interest in land emanating from a Court of Appeal decision can only be challenged in that court or the Supreme Court.

Court orders

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  1. 1.The 1st to 4th Defendants ordered to vacate from the portions of land parcel Kisumu/Marera/3406 in their possession within ninety (90) days, and in default eviction orders to issue
  2. 2.The Defendants to pay the Plaintiff costs of the suit, payable through the court, with applicable court fees to be ascertained by the Deputy Registrar deducted and the balance released to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (suit by plaint); plaintiff's title derives from Court of Appeal decision in Civil Appeal No. 174 of 2003

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, "Hezbon Pande Nyaidho v Joel Okudo Ondu & 4 others [2017] KEELC 3666 (KLR)", Case Analysis (2017). Kisumu/Marera suit arising from plaint dated 3rd May 2012 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3666/eng@2017-01-24

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