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ELCDismissedELC. No. 2834 of 1995· [2017] KEELC 3817 (KLR)

Kenya Post Office Savings Bank Ltd v Simiyu Abiud Wasike [2017] KEELC 3817 (KLR)

High Court of Kenya, Environment and Land Court
7 September 2017
7,576 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Kenya Post Office Savings Bank Ltd, as registered proprietor of LR No.209/11908 (House No. HG34, Mara Road, Upper Hill) following a vesting order of 6th July 1994 registered on 27th July 1994, sued the defendant in occupation for vacant possession, mesne profits of Kshs.50,000 per month, costs and interest. The bank's title arose from a consent and vesting order in HCCC No.2567 of 1993, in which it executed a decree of Kshs.15,435,411/35 against Thabiti Finance Company Limited, which had offered the suit property in settlement. The defendant, a retired civil servant who had occupied the house since 1983, contended his occupation was lawful and that the President had approved allocation of the house to him in 1993, while the rival allocation to Hon. Dalmas Otieno had been withdrawn. Four witnesses testified for the plaintiff and two for the defendant; only the plaintiff filed written submissions. The court found the suit property was originally unalienated Government land alienable only by the President under Section 3(a) of the Government Lands Act; the defendant's application was approved by the President on 11th May 1993, while there was no evidence of presidential authorization for any allocation to Hon. Dalmas Otieno, making the initial allocation to Thabiti Finance irregular. The vesting order, though validly issued, was procured with material non-disclosure and in breach of natural justice, as the occupying defendant was condemned unheard. His occupation was lawful and his equitable interest bound the land. Though the defendant filed no counterclaim challenging the plaintiff's title, the plaintiff failed to prove wrongful occupation on a balance of probabilities. The suit was dismissed entirely with each party bearing its own costs.

Key legal issues

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01

Proper allottee of the suit property

Holding

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

Reasoning

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.

p. 8
02

Procedural regularity of the initial allocation to Thabiti Finance Company Limited

Holding

The allocation that brought about Thabiti's title was not procedurally done, so the resultant registration could be challenged

Reasoning

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.

03

Validity of the Vesting Order of 6th July 1994

Holding

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

Reasoning

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.

p. 10
04

Whether the Defendant's occupation was lawful

Holding

The Defendant's occupation was lawful; his entry in 1983 as a civil servant was lawful and his equitable interest bound the land

Reasoning

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.

p. 10
05

Entitlement to vacant possession and mesne profits

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit filed on 12th September 1995 is dismissed entirely
  2. 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

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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, "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.