Kenya Post Office Savings Bank Ltd v Simiyu Abiud Wasike [2017] KEELC 3817 (KLR)
The bottom line
#The High Court dismissed a bank's bid to evict a man who had lived in a government house since 1983, holding his occupation was lawful.
What this practically means
#Executive summary
#Key legal issues
#Proper allottee of the suit property
The Defendant was the proper allottee, his application having been approved by the President; no evidence showed presidential authorization of any allocation to Hon. Dalmas Otieno
The suit property was unalienated Government land alienable only by the President under Section 3(a) of the Government Lands Act. The Defendant's application dated 16th March 1993 was approved by the President on 11th May 1993. No application by or presidential approval for Hon. Dalmas Otieno was produced, so his alleged allocation was unauthorized.
Procedural regularity of the initial allocation to Thabiti Finance Company Limited
The allocation that brought about Thabiti's title was not procedurally done, so the resultant registration could be challenged
Since only the President could alienate unalienated Government land and there was no evidence of presidential authorization for the allocation to Hon. Dalmas Otieno, the initial allocation was irregular. Indefeasibility of title cannot be used to sanction an illegality or irregularly obtained title.
Validity of the Vesting Order of 6th July 1994
The Vesting Order was validly issued but was obtained with material non-disclosure and in breach of natural justice as the occupying Defendant was not heard
Thabiti Finance entered a consent vesting the property to the Plaintiff while the Defendant, who was in occupation and had a pending suit (HCCC No.2290 of 1994) against Thabiti, was neither party to the consent nor informed of the prohibitory order. This condemned him unheard, contrary to audi alteram partem.
Whether the Defendant's occupation was lawful
The Defendant's occupation was lawful; his entry in 1983 as a civil servant was lawful and his equitable interest bound the land
The Defendant occupied the house from 1983 by virtue of being a civil servant, and the President approved allocation to him. Under the principle in Mwangi v Mwangi, a person in possession has an equitable right binding on the land, and Section 52 of the Transfer of Property Act barred transfer of lis pendens property so as to affect his rights.
Entitlement to vacant possession and mesne profits
The Plaintiff was not entitled to the orders sought; the Defendant filed no counterclaim to challenge the Plaintiff's title but his lawful occupation defeated the claim
Though indefeasibility under Section 26(1) of the Land Registration Act was subject to challenge for illegality or irregularity, the Defendant had not counterclaimed to cancel the title. However, since his occupation was lawful and his equitable right was yet to be established, the Plaintiff failed to prove wrongful occupation on a balance of probabilities.
Legal principles established
#- Only the President had authority under Section 3(a) of the Government Lands Act to alienate unalienated Government land, and an allocation without presidential authorization is irregular
- A certificate of title is a product of a process; if the process was unlawful the title can be challenged
- A registered proprietor whose root of title is challenged must prove the legality of the acquisition beyond merely producing the title instrument
- The right of a person in possession or occupation of land is an equitable right binding on the land
- Parties cannot by consent or vesting order resolve property rights of a person in occupation behind his back without breaching natural justice
Court orders
#- 1.The Plaintiff's suit filed on 12th September 1995 is dismissed entirely
- 2.Each party to bear its/his own costs
- Jurisdiction invoked
- Original civil suit (Environment and Land Court); no specific constitutional provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Post Office Savings Bank Ltd v Simiyu Abiud Wasike [2017] KEELC 3817 (KLR)", Case Analysis (2017). ELC. No. 2834 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3817/eng@2017-09-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.