James Jalango Oware v Isaack Ohare [2018] KEELC 1783 (KLR)

The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and make 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 plaintiff's testimony that he was the registered owner and that the defendant breached the purchase agreement went unchallenged because the defendant, though served, neither attended court nor filed papers. The court, guided by Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna, held the title intact and found the plaintiff had proved his case on a balance of probabilities.

The plaintiff testified that in or about 1989 the parties entered an agreement for the sale of the parcel for Ksh. 11,000, of which the defendant paid only Ksh. 9,000, and that the defendant continued using the land without paying the balance despite demands. PW2, the witness to the agreement, corroborated that he saw the defendant pay Ksh. 9,000 only. The defendant was served but failed to attend court or file any papers in opposition, so the uncontroverted evidence stood unrebutted and supported a finding of breach on a balance of probabilities.

Although the plaintiff prayed for mesne profits alongside the declaration and costs, the judgment contains no evidence quantifying or demonstrating the profits allegedly derivable from the defendant's occupation of the land. The court therefore declined to award that head of relief, granting only the declaration/permanent injunction and costs, illustrating that a party who seeks special damages or mesne profits must lead specific proof of the loss.