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ELCDismissedELC Case No. 363 of 2014· [2018] KEELC 3114 (KLR)

Hudson Isaji v Moses Hillary Alumande & 2 others [2018] KEELC 3114 (KLR)

Environment and Land Court of Kenya
30 May 2018
NMN.A. Matheka
4,542 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land buyer's claim, confirming that registered titles in Kenya can only be challenged by proving fraud or a corrupt scheme.

What this practically means

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Executive summary

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The plaintiff sued the defendants seeking annulment of their joint registration of land parcel No. Tiriki/Cheptulu/266 and transfer to him of a 20ft x 85ft portion he purchased from their late father, Lumwaji Lime, under a written agreement of 10/2/1989 for Kshs 10,000/=. He claimed the vendor executed all transfer documents and obtained Land Control Board consents, but registration was blocked by a caution lodged by the 1st defendant, after which the defendants allegedly secretly caused the whole parcel to be transferred to themselves on 25/1/1994, the day their father died, without letters of administration. The defendants denied the claim, asserting their father lawfully transferred the whole parcel to them before his death, that the transaction failed and the purchase price was refunded into an advocate's account, and that an earlier criminal conviction for obtaining registration by false pretences was quashed on appeal in Kakamega HC Criminal Appeal No. 241 of 1997. They counterclaimed for an injunction, mesne profits and costs. The court held that the sale was unsuccessful and the money was refunded, that no fraud or illegality was proved against the defendants, and that their registration vested absolute ownership in them under sections 24(a) and 26(1) of the Land Registration Act, applying Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another. The plaintiff's suit was dismissed; the counterclaim was allowed only in part, with an injunction restraining the plaintiff from occupying the land, mesne profits being refused as unproved, and costs awarded to the defendants.

Key legal issues

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01

Whether the plaintiff proved fraud or irregularity in the defendants' registration of the suit parcel

Holding

The plaintiff failed to establish his case on a balance of probabilities; no fraud was proved against the defendants, whose title is proper and lawful

Reasoning

The court found, on the evidence, that the sale agreement was unsuccessful and the purchase price was refunded to the advocate's office. The defendants' evidence was that their father lawfully executed, presented and paid for the transfer documents before his death. In the absence of proof of fraud or illegality, their title under sections 24(a) and 26(1) of the Land Registration Act is indefeasible and stands.

p. 4
02

Whether the defendants are entitled to the injunction sought in their counterclaim

Holding

The counterclaim was proved on a balance of probabilities and an injunction restraining the plaintiff from remaining in occupation was granted

Reasoning

Having been registered as absolute proprietors in 1994, the defendants have no contract with the plaintiff, who has not established any overriding interest. They are entitled to occupy and use the whole of the suit land without encumbrance or hindrance from the plaintiff. Mesne profits, however, were not proved and were refused.

p. 5

Legal principles established

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  • Registration of a person as proprietor of land vests in that person absolute ownership of the land together with all rights and privileges appurtenant thereto
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • The law protects title and permits challenge only on the two grounds in section 26(1) of the Land Registration Act

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.An injunction to restrain the plaintiff by himself, his servants or agents or otherwise howsoever from remaining or continuing in occupation of the suit piece of land
  3. 3.Costs of the suit to the defendants

Authorities

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Legislation

  • Land Registration Act, No. 3 of 2012Section 24(a)
  • Land Registration Act, No. 3 of 2012Section 26(1)
  • Registered Land Act, Cap 300 Laws of KenyaSection 27(a)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 4(1)
  • Penal Code, Cap 63 Laws of KenyaSection 320 as read with Section 36

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 (not expressly stated in the judgment)

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, "Hudson Isaji v Moses Hillary Alumande & 2 others [2018] KEELC 3114 (KLR)", Case Analysis (2018). ELC Case No. 363 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3114/eng@2018-05-30

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