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ELCPartially AllowedELC Case No. 167 of 2017· [2018] KEELC 1303 (KLR)

Adukan Lodung Jenipher & another v Protus Imbala Rapando [2018] KEELC 1303 (KLR)

Environment and Land Court
16 October 2018
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court cancelled a registered owner's title because he couldn't prove he actually bought the land, handing it to the deceased's family.

What this practically means

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Executive summary

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This was a first-instance land claim before the Environment and Land Court at Kakamega in which the two plaintiffs sought cancellation of the defendant's title to land parcel Butsotso/Esumeyia/4387 and issuance of a new title in their favour. The plaintiffs' case was that the late Godfrey Lushacka Kiragava purchased about 0.76 Ha of parcel Butsotso/Esumeyia/118 from the late Richard Nduku Luchendo, who died before transfer; that Godfrey settled his family on the purchased portion; and that the defendant, having obtained letters of administration over the vendor's estate in Kakamega HC Succession Cause No. 235 of 2000, subdivided the parcel into seven portions and gave himself two, leaving the Godfrey estate without its entitled portion. The defendant admitted the subdivision but denied the fraud, contending that Godfrey sold the land to him and moved to Kitale, and that the title issued to him on 12/9/2013 with the title deed on 20/9/2013. The court, applying sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision, found the defendant to be the registered owner but held that title may be challenged where acquired by fraud, illegality, unprocedural means or corrupt scheme. The court found the defendant's alleged purchase uncorroborated and noted the deceased's family resided on the land. It found the plaintiffs' case proved on a balance of probabilities and ordered cancellation of the defendant's title with issuance of a new title to the plaintiffs, plus costs. Judgment delivered on 16th October 2018 by N.A. Matheka, J.

Key legal issues

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01

Indefeasibility of title under the Land Registration Act

Holding

A registered proprietor's title is prima facie absolute and indefeasible but may be challenged where acquired by fraud, misrepresentation to which the proprietor is party, illegally, unprocedurally or through a corrupt scheme

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, holding that although the defendant is the registered owner of parcel 4387, the claim lay within the statutory exceptions to indefeasibility. Guided by the Elijah Makeri Nyangw'ra decision, the court found that the defendant's claim of purchase from the deceased was uncorroborated and that the deceased's family resided on and had beneficial interest in the land, so the title obtained was challengeable and was cancelled.

p. 2
02

Whether the plaintiffs proved their claim on a balance of probabilities

Holding

The plaintiffs proved their case on a balance of probabilities and were entitled to cancellation of the defendant's title

Reasoning

The court found as undisputed that the late Godfrey Lushacka Kiragava bought 0.76 Ha of parcel 118, that the vendor died before transfer, and that in the succession distribution Godfrey was to receive parcel 4387. The defendant alleged an intervening sale to himself but produced only a sale agreement with no corroborating witnesses, and admitted the deceased's family lived on the land when he allegedly purchased it, undermining his claim.

p. 2

Legal principles established

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  • Registration vests absolute ownership, and a certificate of title is prima facie evidence of indefeasible ownership, challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme

Court orders

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  1. 1.Cancellation of the title deed issued to the defendant in respect of land parcel number Butsotso/Esumeyia/4387 and issuance of a new title deed for the same in favour of the plaintiffs
  2. 2.Costs of the suit to the plaintiffs

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
Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court); Land Registration Act cited

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, "Adukan Lodung Jenipher & another v Protus Imbala Rapando [2018] KEELC 1303 (KLR)", Case Analysis (2018). ELC Case No. 167 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1303/eng@2018-10-16

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