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ELCAllowedELC No. 319 of 2010· [2017] KEELC 3773 (KLR)

Manasseh Yamina Sasida v Jane K. Isanda & 3 others [2017] KEELC 3773 (KLR)

High Court of Kenya, Environment and Land Court
23 June 2017
2,960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued for rectification of title over Plot No.82 LR No.63/642, Jamhuri Estate Phase II, Nairobi, alleging that he purchased the plot from the 1st Defendant under a written sale agreement dated 6th September 2001 for Kshs.820,000/-, paid all requisite charges, took possession and constructed a residence, only to discover that a title had been issued to the 2nd Defendant, allegedly through fraud or mistake. The 1st and 2nd Defendants, though served, did not enter appearance or file defences. The 3rd Defendant filed a defence of bare denial but did not attend the hearing; the 4th Defendant did not participate. The matter proceeded as uncontested, with the Plaintiff testifying as the sole witness. Framing five issues, the court found the purchase proved, the registration in the 2nd Defendant's name established by official search, and that registration effected on 26th October 2001, a month after the Plaintiff's purchase, was illegal and unprocedural. Applying Section 26 of the Land Registration Act, the court held the 2nd Defendant's title impeachable, and invoking Section 80 and the principle in Mwangi v Mwangi that possessory rights are binding equitable rights, the court ordered cancellation of the 2nd Defendant's registration and rectification of the register in favour of the Plaintiff, entering judgment in terms of prayers (a) and (b) with costs to the Plaintiff. Judgment dated 23rd June 2017 by L. Gacheru, J.

Key legal issues

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01

Indefeasibility of title under Section 26 of the Land Registration Act

Holding

The 2nd Defendant's registration was procured illegally and unprocedurally, one month after the Plaintiff's purchase, and his title is therefore impeachable notwithstanding prima facie indefeasibility.

Reasoning

The court found the Plaintiff purchased the suit property on 6th September 2001 under a written sale agreement and took possession. The 2nd Defendant was registered on 26th October 2001, a month later. No Defendant testified to explain the registration. Section 26 permits challenge where title is acquired illegally, unprocedurally or by fraud, and the unchallenged evidence established such impropriety.

p. 4
02

Rectification of the register under Section 80 of the Land Registration Act

Holding

The court ordered cancellation of the 2nd Defendant's registration and rectification of the register in favour of the Plaintiff.

Reasoning

Having found the registration was effected illegally, unprocedurally or by mistake, and with no Defendant appearing to support it, the court exercised its Section 80 power to direct cancellation of the registration and amendment of the register to reflect the Plaintiff as proprietor of Plot No.82 LR No.63/642.

p. 5
03

Possessory rights as equitable rights

Holding

The Plaintiff, being in possession and having constructed a residence, holds an equitable possessory right binding on the land, entitling him to registration.

Reasoning

Relying on Mwangi & Another v Mwangi (1986) KLR 328, the court held that possession confers an equitable right. The Plaintiff's unchallenged evidence of possession and construction of a residential house where he lives with his family established such a possessory right, supporting his claim to be registered as owner.

p. 5
04

Whether the 1st Defendant was the original allottee

Holding

The court could not find with certainty that the 1st Defendant was the original allottee, given her own earlier pleadings attributing allotment to Francis Karani Elijah.

Reasoning

Although a Letter of Allotment dated 13th March 1992 in the 1st Defendant's name was produced, no witness from the defunct City Council confirmed its authenticity. In HCCC No.1375 of 2002 the 1st Defendant herself alleged she purchased from Taluli Mbasu, who purchased from original allottee Francis Karani Elijah, making the allotment question uncertain.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged where acquired by fraud, misrepresentation, or illegally, unprocedurally or through a corrupt scheme (Section 26, Land Registration Act).
  • The rights of a person in possession or occupation of land are equitable rights which are binding.
  • The court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake (Section 80, Land Registration Act).

Court orders

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  1. 1.Cancellation of the Certificate of Title registered in favour of the 2nd Defendant, Alfred Mathenge Ngari
  2. 2.Rectification of the Land Register so that Plot No.82 LR No.63/642 Jamhuri Estate Phase II, Nairobi is registered in favour of the Plaintiff Manasseh Yamina Sasida
  3. 3.Judgment entered in favour of the Plaintiff in terms of prayers (a) and (b) of the Plaint
  4. 4.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)

Cases cited (1)

  • Mwangi & Another Vs Mwangi
    (1986) KLR 328
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Land Registration Act, Sections 26 and 80)

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, "Manasseh Yamina Sasida v Jane K. Isanda & 3 others [2017] KEELC 3773 (KLR)", Case Analysis (2017). ELC No. 319 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3773/eng@2017-06-23

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