Margaret Abiya v Thomas Kimeli Kering & another [2018] KEELC 2608 (KLR)
The bottom line
#A Kenyan court cancelled a land buyer's title because she was registered over the wrong parcel, ordering the land dealer to refund or allocate alternative land.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff's registered title to parcel 11731 was indefeasible
No; the title was acquired un-procedurally through mistake and was therefore liable to challenge and cancellation
While registration confers absolute and indefeasible ownership under Section 26(1) of the Land Registration Act 2012, the protection does not extend to titles acquired illegally, unprocedurally or through a corrupt scheme. The land registrar testified that parcel 11731 emanated from parcel 1440, not 1437 which the plaintiff purchased. The plaintiff was therefore registered over a parcel that did not result from the one she bought, a mistake and procedural impropriety caused by the 1st defendant.
Whether the plaintiff proved the legality of her acquisition when her root of title was challenged
No; she had to go beyond the title document, and the evidence showed the parcel registered in her name was not the one she purchased
Relying on Munyu Maina v Hiram Gathiha Maina, where a registered proprietor's root of title is challenged it is not enough to dangle the title instrument. The sale agreement showed the plaintiff bought a portion of Pioneer/Ngeria Block 1(EATEC) 1437, but parcel 11731 was created on 15/06/2012 from parcel 1440. The court found a mix-up in the office of Betaland Enterprises, which had two agents selling different parcels.
Whether the 2nd defendant's counterclaim was established
Yes; the 2nd defendant proved he purchased a portion of parcel 1440 that gave rise to parcel 11731, and parcel 11731 was ordered registered in his name
The 2nd defendant bought the parcel from Betaland Enterprises on 23/3/2012 for Kshs. 280,000, paid in full, and took possession and developed it. The registered owner James Kiprono Sang signed the transfer in his favour. The transfer of the plaintiff's interest was tainted by irregularity, including lack of a valid land control board consent under section 6 of the Land Control Act.
Compliance with the Land Control Act in the transaction
The application for land control board consent was made more than six months after the sale agreement and no consent was produced, contrary to section 6 of the Land Control Act
The application for consent of the land control board was made on 4/3/2014, more than six months after the 23/3/2012 agreement, contrary to section 6 of the Land Control Act Cap 302. There was no evidence the application was presented to the board, and no consent existed, further vitiating the transfer process.
Legal principles established
#- A registered proprietor whose root of title is challenged must go beyond the title instrument and prove the legality of the acquisition
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, but may be challenged on grounds of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
Court orders
#- 1.Cancellation of the plaintiff's title to PIONEER/NGERIA BLOCK 1(EATEC) 11731 on the ground that it was obtained un-procedurally due to mistake
- 2.The 1st defendant to, within 60 days, allocate and transfer to the plaintiff alternative land within the same locality or refund Kshs. 255,000/= plus interest from the date of filing suit
- 3.PIONEER/NGERIA/BLOCK1 EATEC 11731 to be registered in the names of the 2nd defendant
- 4.Costs of the suit plus interest to be paid by the 1st defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the land dispute; cause of action arose in Eldoret Town (as pleaded in the defence and counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Margaret Abiya v Thomas Kimeli Kering & another [2018] KEELC 2608 (KLR)", Case Analysis (2018). Civil Case No 362 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2608/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.