Henry Gatei Hiuhu & another v Mary Njoki Waweru & another [2018] KEELC 2272 (KLR)
The bottom line
#The Environment and Land Court in Nakuru cancelled a landowner's title, holding it was fraudulently acquired, and gave the land back to the family that had occupied it since 1984.
What this practically means
#Executive summary
#Key legal issues
#Effect of registration under the Land Registration Act
Registration ordinarily confers absolute and indefeasible title under Sections 24 and 25 of the Land Registration Act, subject to Section 26 exceptions
The court noted the 1st defendant was the registered proprietor as confirmed by the green card, and that such registration would ordinarily confer the rights in Sections 24 and 25 of the Land Registration Act, with the certificate conclusive under Section 26 except in cases of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.
Whether the 1st defendant's title was procured illegally and unprocedurally
Yes; the failure of the 2nd defendant to testify or produce registry records, and the 1st defendant's failure to explain the registration, established fraud and illegality on a balance of probabilities
The court found the plaintiffs were bona fide allottees with share certificate No. 3692 and voting card No. 2767, corroborated by the District Land Adjudication and Settlement Officer's letter. The 2nd defendant, despite asserting the registration was lawful, adduced no evidence and did not produce the parcel file and presentation book required under Section 6 of the Registered Land Act (repealed) and Section 7(1)(c) and (e) of the Land Registration Act, lending credence to the claim of illegal and unprocedural registration.
Uncontroverted evidence of plaintiffs' occupation and allocation
The plaintiffs' unchallenged testimony was accepted, including that they occupied the land since 1984 and the 1st defendant was a stranger to the property
Neither defendant tendered evidence or cross-examined the plaintiffs' witness. In the absence of contrary evidence, the court accepted PW1's testimony that the plaintiffs were shareholders, participated in balloting, were allocated plot No. 2767 corresponding to the suit property, and had occupied it undisturbed since 1984, while the 1st defendant was a stranger with no connection to the property.
Legal principles established
#- A certificate of title is conclusive evidence of proprietorship and may be challenged only on grounds of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme
Court orders
#- 1.A declaration that the plaintiffs are the legal proprietors of the parcel of land known as Kijabe/Kijabe Block 1/2767 to the exclusion of the 1st defendant
- 2.The Registrar of Lands Naivasha to cancel the title deed for Kijabe/Kijabe Block 1/2767 issued in the name of the 1st defendant and register the plaintiffs as proprietors of the parcel of land
- 3.Costs of the suit awarded to the plaintiffs, to be paid by the 1st defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit land (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Gatei Hiuhu & another v Mary Njoki Waweru & another [2018] KEELC 2272 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2272/eng@2018-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.