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ELCPartially AllowedELC No. 318 of 2017· [2018] KEELC 3040 (KLR)

Stephen Saramba Viraghi v Hillary Savari & another [2018] KEELC 3040 (KLR)

Environment and Land Court
31 May 2018
NMN.A. Matheka
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court confirmed that a registered title deed wins in Kenya unless someone proves fraud, and ordered the occupants off the land within three months.

What this practically means

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Executive summary

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The plaintiff, Stephen Saramba Viraghi, sued the two defendants claiming to be the beneficial and/or registered owner of parcel Kakamega/Bugonda/2163 (approximately 0.04 Ha), having succeeded to the estate of his late father Shem Virachi alias Shem Vilachi through Hamisi SPM Court Succession Cause No. 26 of 2003 and Kakamega HC Succession Cause No. 861 of 2013. He alleged that the defendants entered the land without his consent and without colour of right, took possession and occupied a permanent structure his father had built, amounting to continuing trespass, and sought a permanent injunction and eviction. The defendants were served but neither entered appearance nor defended the suit. The plaintiff testified and produced a certificate of confirmation of grant, a title deed and an official search showing him as registered owner (PEx1.2 & 3). The court applied Article 40 of the Constitution, section 3 of the Trespass Act, section 23(1) of the Registration of Titles Act, and sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title, and adopted the decision in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another (2013) eKLR on the limited grounds for challenging title. Finding the plaintiff's title proper and lawful absent any fraud or irregularity, and that the defendants' occupation was without consent, the court held the plaintiff had proved his case on a balance of probabilities. It issued a declaration of lawful ownership, a permanent injunction against the defendants and third parties, ordered them to vacate within three months failing which eviction would issue, and awarded costs to the plaintiff.

Key legal issues

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01

Indefeasibility of the plaintiff's title

Holding

The plaintiff, having produced a title deed and official search showing him as registered owner following succession, holds an indefeasible title absent proof of fraud or irregularity

Reasoning

The plaintiff produced a certificate of confirmation of grant, a title deed and an official search establishing him as registered owner of Kakamega/Bugonda/2163. Relying on section 26(1) of the Land Registration Act and section 23(1) of the Registration of Titles Act, the court held the title prima facie and indefeasible, challengeable only on proof of fraud, misrepresentation, illegality or corrupt scheme, none of which was demonstrated.

p. 2
02

Trespass by the defendants

Holding

The defendants, who entered and occupied the suit land without the plaintiff's consent and without colour of right, committed continuing trespass; the suit was undefended as they failed to enter appearance despite proper service

Reasoning

The defendants were properly served but neither entered appearance nor opposed the suit. The plaintiff testified that his efforts to have them vacate were futile, depriving him of use of his land. Entry upon a registered proprietor's land without consent constitutes trespass, so the defendants' occupation was trespassory and continuing.

p. 1

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
  • The proper plaintiff in an action of trespass to land is the person with title or deemed possession at the time of the trespass

Court orders

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  1. 1.A declaration that the plaintiff is the lawful owner of the suit property
  2. 2.A permanent injunction restraining the 1st and 2nd defendants and any third parties from entering upon, occupying, constructing, dealing with, interfering with or continuing in occupation of Kakamega/Bugonda/2163
  3. 3.The 1st and 2nd defendants and any third parties to vacate the suit land within 3 months from the date of judgment, in default eviction notice to issue forthwith
  4. 4.Costs of the case to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Trespass ActSection 3
  • Registration of Titles ActSection 23(1)
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (3)

  • Machakos La Nyavu Gardens Limited v Wilson Munguti Mbithi & 2 Others
    HCCC 337 of 2011
  • Charles Ogejo Ochieng v Geoffrey Okumu
    [1995]
  • Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction) - implied from the court's jurisdiction over title and trespass to land; not expressly stated

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, "Stephen Saramba Viraghi v Hillary Savari & another [2018] KEELC 3040 (KLR)", Case Analysis (2018). ELC No. 318 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3040/eng@2018-05-31

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