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ELCPartially AllowedELC No. 222 of 2010 (OS)· [2017] KEELC 3790 (KLR)

African Inland Church – Kenya (Registered Trustees) v Catherine Nduku & 12 others [2017] KEELC 3790 (KLR)

Environment and Land Court, High Court of Kenya
4 August 2017
LGL. Gacheru
5,972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld the African Inland Church's Wilson Airport land title as indefeasible, ordering occupants to vacate within 45 days.

What this practically means

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Executive summary

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The Plaintiff, African Inland Church – Kenya (Registered Trustees), sought vacant possession, eviction, a permanent injunction, mesne profits, damages and costs over LR No. 209/11924 near Wilson Airport, alleging the 1st–12th Defendants were trespassing kiosk operators despite Notices to Vacate issued in 2005. The 13th Defendant, Kenya Airports Authority, joined on the Court's own motion under Order 1 Rule 10(2), contended that the suit land formed part of Aerodrome land reserved as LR No. 4959 and later vested in it under the Kenya Airports Authority Act, that it was never available for allocation, and urged cancellation of the Plaintiff's title. Only the Plaintiff and the 13th Defendant adduced evidence. The Court found the Plaintiff's title of 1st July 1990 was genuine and first in time, predating the 13th Defendant's 1996 title over a different parcel of differing acreage. No evidence linked the two parcels or proved fraud, illegality or double allocation. The Plaintiff's title was therefore held indefeasible under Section 26 of the Land Registration Act, protected by Article 40, and the uncontroverted trespass evidence against the 1st–12th Defendants proved the case on a balance of probabilities. Judgment was entered for the Plaintiff on prayers (a), (b), (d) and (h) of the Amended Originating Summons. The Defendants were directed to deliver vacant possession within 45 days, failing which the Plaintiff may apply for an eviction order. All Defendants, save the 9th, were ordered to bear the costs of the suit.

Key legal issues

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01

Availability of the suit property for allocation

Holding

The suit property was available for allocation and was rightly allotted to the Plaintiff; the 13th Defendant adduced no evidence proving the parcel was carved from its Aerodrome land

Reasoning

The Plaintiff's title was issued on 1st July 1990, six years before the 13th Defendant's title of 1st August 1996. The Ministry of Lands confirmed the Plaintiff's title as genuine. The 13th Defendant relied on a Parliamentary Report that made no reference to the suit property, and called no Ministry evidence linking LR No. 209/11924 to the Aerodrome land. Absent such proof, the allocation could not be impugned as an allocation of public land already belonging to the 13th Defendant.

p. 8
02

Indefeasibility of the Plaintiff's title

Holding

The Plaintiff's title is absolute and indefeasible because no fraud, illegality or misrepresentation was proved against it

Reasoning

The title was registered in 1990 under the Registration of Titles Act, whose Section 23(1) conferred absolute and indefeasible title, a position now mirrored by Section 26 of the Land Registration Act. The 13th Defendant alleged illegality but produced no evidence of it; the Ministry of Lands and Commissioner of Lands had confirmed the title's authenticity. Equally, the Plaintiff's title being first in time, equity favours it.

p. 9
03

Double allocation

Holding

No double allocation was established; the two parcels differ in registration and acreage, and even if there were, the first-registered title prevails

Reasoning

There was no evidence that the suit land was allotted to the 13th Defendant or excised from its land. The parcels have different registration numbers and acreages. The Court applied the equitable maxim that where two equities are equal, the first in time prevails, relying on Gitwany Investment Ltd v Tajmal Ltd.

p. 9
04

Entitlement to the orders sought against the Defendants

Holding

The Plaintiff proved its case on a balance of probabilities; the 1st–12th Defendants' evidence on trespass was uncontroverted, entitling the Plaintiff to vacant possession and an injunction

Reasoning

As absolute and indefeasible proprietor, the Plaintiff's rights vest under Sections 24 and 25 of the Land Registration Act and are protected by Article 40 of the Constitution. The 1st–12th Defendants, who were tenants of the Plaintiff, received Notices to Vacate in 2005 and never filed a response to the Amended Originating Summons nor adduced evidence, leaving the trespass claim uncontroverted.

p. 10

Legal principles established

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  • A certificate of title issued upon registration is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • Where two titles are issued over the same parcel and both were issued regularly and without fraud, the first in time prevails
  • He who alleges must prove; a plaintiff bears the burden of proving its allegations on a balance of probabilities
  • Where no evidence links two parcels of land, the court cannot find that one was excised from the other

Court orders

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  1. 1.Declaration that the Plaintiff is the legal proprietor of Land Parcel LR No. 209/11924 (prayer (a))
  2. 2.Declaration that the Defendants, their employees, servants, agents or any other occupants give vacant possession of the Plaintiff's Land Parcel LR No. 209/11924 forthwith (prayer (b))
  3. 3.Permanent injunction restraining the Defendants from occupying Land Parcel No. 209/11924 (prayer (d))
  4. 4.Costs of the suit to the Plaintiff against all Defendants save the 9th Defendant (prayer (h))
  5. 5.The Defendants to give vacant possession to the Plaintiff within 45 days from the date of the Judgment, in default the Plaintiff to apply for an eviction order

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)
  • Land Registration ActSection 26(1)
  • Land Registration ActSections 24 and 25(1)
  • Registration of Titles ActSection 23(1)
  • Constitution of Kenya, 2010Article 40 (including Article 40(6))
  • Kenya Airports Authority ActCap 395
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (6)

  • Gitwany Investment Ltd v Tajmal Ltd & 3 Others
    Nairobi HCC No. 1114 of 2002
  • Wreck Motors Enterprises v Commissioner of Lands
    C.A No. 71/1997
  • Dr. Joseph N. K. Arap Ngok v Justice Moijo Ole Keiuwa & Others
    Nairobi Civil Application No. 60 of 1997
  • Republic v Registrar of Kilifi, Ex-parte Daniel Ricci
    (2013) eKLR
  • Chemer Investments Ltd v The Attorney General & Others
    Nairobi Petition No. 94 of 2005
  • Milan Kumarn Shah & 2 Others v City Council of Nairobi & Another
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land LR No. 209/11924 (Wilson Airport); Amended Originating Summons under the Civil Procedure Rules (Order 1 Rule 10(2) invoked to enjoin the 13th Defendant)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "African Inland Church – Kenya (Registered Trustees) v Catherine Nduku & 12 others [2017] KEELC 3790 (KLR)", Case Analysis (2017). ELC No. 222 of 2010 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3790/eng@2017-08-04

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