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ELCAllowedELC Case No. 98 of 2016· [2018] KEELC 2371 (KLR)

Billystrom Aronya Jiveti v Scholastica Katambani [2018] KEELC 2371 (KLR)

Environment and Land Court
12 July 2018
NMN.A. Matheka
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a registered title holder can evict occupants unless fraud, illegality, or corruption is proven.

What this practically means

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Executive summary

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The plaintiff, Billystrom Aronya Jiveti, sued the defendant, Scholastica Katambani, seeking her eviction from LR No. KAKAMEGA/BUMBO/301 and costs. He averred that he became the registered proprietor of the parcel on 28th April 2008 pursuant to a gift from his late father, Joash Jiveti Busu, who had purchased the land from the defendant's mother-in-law, Dinah Isiji Ngoizi. He claimed an oral consent had been reached in 2008 for the defendant to vacate and join her mother-in-law on another parcel, but she reneged and continued occupying about a quarter acre of the land without his consent, taking advantage of his absence from the country. The plaintiff relied on sections 24(a) and 26(1) of the Land Registration Act and produced a title deed and official search through his attorney, Hardly Songole Sinjaa. The defendant was served with summons, plaint and hearing notices but neither entered appearance, filed a defence nor attended the hearing; the claim was undefended. The court applied section 26(1), holding that a certificate of title is prima facie evidence of absolute and indefeasible ownership challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme, and applied Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another (2013) eKLR. Finding the plaintiff had proved his case on a balance of probabilities and that no evidence impugned the title, the court ordered the defendant, her agents and/or employees to vacate the suit parcel within three months, failing which an eviction order would issue forthwith, and awarded costs of the suit to the plaintiff.

Key legal issues

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01

Whether the plaintiff's registered title to LR KAKAMEGA/BUMBO/301 was established and indefeasible

Holding

The court held that the plaintiff, as registered proprietor holding a title deed dated 28th April 2008, is the absolute and indefeasible owner, and no evidence of fraud, misrepresentation, illegality or corrupt scheme was adduced to challenge the title.

Reasoning

Relying on sections 24(a) and 26(1) of the Land Registration Act, the court found the plaintiff's official search and title deed (PEx2) established ownership. The defendant, though served, entered no appearance, filed no defence and offered no evidence at the hearing. Accordingly, nothing was placed before the court to bring the case within the two statutory exceptions to indefeasibility, and the certificate of title was taken as prima facie proof of absolute ownership.

p. 2
02

Whether the plaintiff proved his entitlement to eviction of the defendant

Holding

The court found the plaintiff had proved his case on a balance of probabilities and granted eviction, giving the defendant three months to vacate in default of which an eviction order would issue forthwith.

Reasoning

The defendant occupied about a quarter acre without the plaintiff's consent after the land was transferred to the plaintiff as a gift. Service of summons and hearing notices was proved by affidavit of service yet the defendant never appeared or filed a defence. In the absence of any contrary evidence, the court inferred the defendant had no answer to the claim and granted the eviction relief sought, together with costs.

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 fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • A plaintiff who proves registration and produces title, with no contrary evidence, discharges the burden on a balance of probabilities

Court orders

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  1. 1.The defendant, the defendant's agents and/or employees jointly and severally are given 3 (three) months from today's date to vacate the suit parcel better known KAKAMEGA/BUMBO/301 and in default eviction order to issue forthwith
  2. 2.Costs of this suit to the plaintiff

Authorities

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Legislation

  • Land Registration Actsection 26(1)
  • Land Registration Actsection 24(a)
  • Land Registration Actsection 26(1)(a) and (b)

Cases cited (1)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title and occupation of land

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, "Billystrom Aronya Jiveti v Scholastica Katambani [2018] KEELC 2371 (KLR)", Case Analysis (2018). ELC Case No. 98 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2371/eng@2018-07-12

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