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ELCPartially AllowedELC Case No. 340 of 2010· [2018] KEELC 2440 (KLR)

Livingstone Ngaira Anjila v Stephen Likami Lipang & 5 others [2018] KEELC 2440 (KLR)

Environment and Land Court
11 July 2018
NMN.A. Matheka
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court confirmed that a registered Kenyan title wins over long occupation, unless fraud or corruption is proved.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Land Parcel No. Butsotso/Shikoti/1281, sued six defendants alleging trespass and sought a declaration of ownership, eviction, a permanent injunction, costs and interest. The 3rd to 5th defendants did not enter appearance. The 1st and 2nd defendants denied the claim, asserting occupation since 1964 and challenging the plaintiff's title as fraudulent. The 6th defendant claimed to be a bona fide purchaser of part of the parcel from the 1st defendant for Kshs. 110,000/- and alternatively relied on adverse possession, seeking indemnification by the 1st defendant. The court framed four issues: the plaintiff's title, alleged fraud in his acquisition, whether the plaint disclosed a reasonable cause of action, and proof on a balance of probabilities. Relying on Sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri case, the court found the plaintiff's title prima facie and indefeasible, with no evidence of illegal, unprocedural or corrupt acquisition. It held that the 1st defendant, being neither administrator nor owner, had no title to pass to the 6th defendant, rendering that sale void ab initio. Adverse possession failed because the 1st defendant occupied by the plaintiff's permission. The suit was allowed: the court declared the plaintiff the lawful absolute proprietor, ordered all defendants to vacate within three months with eviction to follow in default, and awarded costs to the plaintiff. The injunction and interest sought were not included in the final orders.

Key legal issues

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01

Whether the plaintiff has a good, indefeasible title to the suit land

Holding

Yes. The plaintiff's title, obtained through succession administration and registration, is prima facie and indefeasible and no evidence was shown that it was acquired illegally, unprocedurally or through a corrupt scheme.

Reasoning

Section 24(a) of the Land Registration Act vests absolute ownership upon registration, and Section 26(1) makes the certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud to which the proprietor is a party, or illegal, unprocedural or corrupt acquisition. The court found no such proof and no contradictions in the green card.

p. 3
02

Whether the acquisition of the suit property by the plaintiff was fraudulent

Holding

No. No fraud was proved against the plaintiff; the title was obtained through Succession Cause No. 200 of 2003 by the administrator.

Reasoning

The court found it undisputed that the plaintiff obtained his title deed through Succession Cause No. 200 of 2003 and that the administrator transferred the land under R.L.7. The plaintiff produced all relevant documents including the title, green card and search. No fraud, misrepresentation or corrupt scheme was proved to impugn the title.

p. 3
03

Whether the 6th Defendant, a purchaser from the 1st Defendant, acquired an interest in the suit land

Holding

No. The 1st Defendant was not the administrator of the deceased's estate and had no proper title to pass; the sale to the 6th Defendant was void ab initio.

Reasoning

The 6th Defendant purchased from the 1st Defendant, who was only the step-brother of the deceased and not the administrator of the estate of Teresina Linani Ikocheli. A seller without title passes none, so the sale was void ab initio. The 6th Defendant's remedy lies against the 1st Defendant, not the land.

p. 3
04

Whether adverse possession in favour of the 1st Defendant (or 6th Defendant) was established

Holding

No. The 1st Defendant was on the land by permission of the plaintiff and there was no dispossession or discontinuance of possession for the statutory period.

Reasoning

Applying the principles in Wambugu v Njuguna as cited in Gerald Muriithi v Wamugunda Muriuki, adverse possession requires dispossession of the proprietor or discontinuance of possession for twelve years. The plaintiff demonstrated that he offered the 1st Defendant 0.25 acres during the pendency of the suit, showing occupation was by permission, inconsistent with adverse possession.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership 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 purchaser from a person with no title takes no interest; such a sale is void ab initio and the purchaser must pursue the seller
  • Possession by permission of the proprietor does not constitute dispossession and cannot found a claim of adverse possession

Court orders

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  1. 1.A declaration that the Plaintiff is the lawfully registered absolute proprietor of Land Parcel No. Butsotso/Shikoti/1281
  2. 2.The Defendants, their agents, servants, employees are to vacate the suit land parcel No. Butsotso/Shikoti/1281 within the next 3 (three) months from the date of the judgment and in default eviction notice 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)
  • Limitation of Actions Act
  • Law of Succession Act Cap 160 Laws of KenyaSection 45(1)

Cases cited (5)

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Bishopsgate Motor Finance Corp Vs Transport Brakes Limited
    [1949] 1 KB 332
  • Symbron E. A. Printers Ltd vs Casey J. K. Mbuaua & Another
    [2009] eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership 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, "Livingstone Ngaira Anjila v Stephen Likami Lipang & 5 others [2018] KEELC 2440 (KLR)", Case Analysis (2018). ELC Case No. 340 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2440/eng@2018-07-11

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