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ELCAllowedELC Case No. 308 of 2017· [2018] KEELC 1268 (KLR)

Theodore Andrew Ochieng v David Shiundu Masieyi [2018] KEELC 1268 (KLR)

Environment and Land Court
24 October 2018
NMN.A. Matheka
1,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered Kenyan title deed wins: the court ordered a land seller who refused to vacate after selling his whole parcel to leave within six months.

What this practically means

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Executive summary

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The plaintiff sued the defendant seeking a declaration that, as registered owner of land parcel N/Wanga/Kholera/2133, he is entitled to exclusive, peaceful and unimpeded possession, together with the eviction of the defendant, costs and interest. The plaintiff's case was that on 22 December 2015 he entered a sale agreement with the defendant for the parcel measuring 2.3 Ha, inclusive of all development, at a consideration of Ksh. 1,900,000/=, which he paid in full through instalments, and that despite undertaking to give possession, the defendant refused to vacate. The defendant admitted the agreement and receipt of the purchase price but contended he sold only 5 ¾ acres out of a 7-acre parcel, that the transaction lacked land control board consent, and sought dismissal with cancellation of the registration to the name of Wilson Masieyi Kulundu. The court applied sections 24(a) and 26(1) of the Land Registration Act, holding that registration vests absolute ownership and that a certificate of title is prima facie evidence of indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme. It applied Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another on the protective stance of the law toward title. Finding the sale agreement and green card confirmed sale of the entire 2.3 Ha parcel, and that the plaintiff had proved his case on a balance of probabilities, the court declared the plaintiff entitled to exclusive possession, ordered the defendant and those claiming through him to vacate within six months, failing which eviction would issue, and awarded costs to the plaintiff.

Key legal issues

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01

Indefeasibility of title under the Land Registration Act

Holding

The plaintiff, being the registered proprietor of the suit land, is the absolute and indefeasible owner; the defendant did not discharge the burden of impugning the title on the statutory grounds

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and render the certificate of title prima facie evidence of indefeasible ownership, subject to challenge only for fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The defendant admitted the sale agreement and receipt of the purchase price, and the documents (agreement, green card, title deed, search) confirmed the plaintiff's registration of the 2.3 Ha parcel. No basis for impugning the title was established.

p. 2
02

Scope of the sale agreement and identity of the parcel sold

Holding

The agreement was for the whole parcel N/Wanga/Kholera/2133 measuring 2.3 Ha for Ksh. 1,900,000/=, as shown by the agreement and green card

Reasoning

The defendant contended he sold only 5 ¾ acres out of a 7-acre parcel, but the court perused the sale agreement which stated the land to be purchased was 2.3 HA at a consideration of Ksh. 1,900,000/=, and the green card confirming that the parcel measures 2.3 Ha. The defendant's assertion of incomplete demarcation did not defeat the plaintiff's documentary evidence of ownership of the whole registered parcel.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership of that land in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.A declaration that the plaintiff being the registered owner of Land Parcel No. N/Wanga/Kholera/2133 is entitled to exclusive, peaceful, quiet and unimpeded possession, occupation and use thereof
  2. 2.The defendant his relatives agents, servants, employees and/or and other person claiming through them is to vacate from parcel of Land Parcel No. N/Wanga/Kholera/2133 within the next 6 (six) months and in default eviction order to issue forthwith
  3. 3.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Elijah Makeri Nyangw'ra –vs– Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (original jurisdiction over land disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Theodore Andrew Ochieng v David Shiundu Masieyi [2018] KEELC 1268 (KLR)", Case Analysis (2018). ELC Case No. 308 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1268/eng@2018-10-24

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