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ELCPartially AllowedNot stated in judgment (suit over Land Parcel Tiriki/Tigoi/1286)· [2018] KEELC 3185 (KLR)

Violet Ingado Kimanani v Francis Kivati Kadasira [2018] KEELC 3185 (KLR)

Environment and Land Court
30 May 2018
1,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The court confirmed that a registered landowner with a clean title can evict someone who cannot prove they paid for their portion.

What this practically means

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Executive summary

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The Plaintiff sued for eviction of the Defendants from Land Parcel Tiriki/Tigoi/1286, claiming to be its registered owner following a 2001 transfer from the late Benjamin Okobo Mambo, and alleging trespass from 2004/2009 onwards. The suit against the second Defendant (Hezron Ogaye) was withdrawn in July 2012. The remaining Defendant, Francis Kivati Kandasira, filed a defence and counterclaim asserting that his late father, Musa Kadasira Azuberi, bought a portion measuring 84 by 78 feet from Benjamin Okobo Mambo in 1997, that the Plaintiff fraudulently caused the whole parcel to be registered in her name, and that a Land Dispute Tribunal had ordered her to surrender title to the excess. He sought a declaration that the Plaintiff's registration was fraudulent and void, reversion of the land to the late Benjamin, and subdivision and registration of the bought portion to his late father. The Court framed four issues and found, on the documentary evidence, that the parcel was a 1995 subdivision of Tiriki/Tigoi/989, with 1286 transferred to the Plaintiff on 27 November 2001 by the then registered proprietor. The Defendant failed to prove payment of the purchase price, possession before the vendor's death, Land Control Board consent, or fraud. The Land Registrar confirmed the registration was procedural. Under Section 26 of the Land Registration Act, the Plaintiff was declared the absolute and indefeasible owner; the Defendant's occupation was held unlawful and the counterclaim dismissed with costs. Judgment was entered for the Plaintiff: boundary confirmation by the Land Registrar and Surveyor, vacant possession by the Defendant within 90 days with eviction in default, and costs of suit and counterclaim to the Plaintiff.

Key legal issues

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01

Validity of the Plaintiff's registration as proprietor of Tiriki/Tigoi/1286

Holding

The Plaintiff is the legally registered proprietor; registration was procedurally done and no fraud, misrepresentation or collusion was proved.

Reasoning

The Land Registrar (PW3) confirmed the parcel was transferred to the Plaintiff on 27 November 2001 by the then registered proprietor Benjamin Okobo Mambo. The Defendant alleged the transfer was fraudulent but adduced no evidence of fraud, misrepresentation or collusion by the Plaintiff or the Land Registry. Absent such proof, the Court declared the Plaintiff the lawful registered proprietor.

p. 2
02

Whether the Defendant's late father purchased a portion of the suit land and whether the Defendant is entitled to it

Holding

The Defendant failed to prove a completed sale of a portion by his late father; he is not entitled to any portion and may only pursue a refund from the vendor's estate.

Reasoning

Although the Defendant alleged a 1997 sale agreement between his late father and Benjamin Okobo Mambo, there was no evidence of payment of the full purchase price, possession, or Land Control Board consent under Sections 6 and 8 of the Land Control Act. The Court accepted that the Defendant took possession only after Benjamin's death in 2009, and that the appropriate remedy is a refund claim against the vendor's estate.

p. 2
03

Whether the Defendant should be evicted from the suit land

Holding

The Defendant is unlawfully in occupation and the Plaintiff, as absolute owner, is entitled to vacant possession through the ordered process.

Reasoning

Having declared the Plaintiff the indefeasible registered proprietor under Section 26 of the Land Registration Act, the Court found the Defendant's occupation of a portion of the suit land unlawful. The Court directed boundary confirmation by the Land Registrar and Surveyor, followed by vacant possession within 90 days, with eviction in default.

p. 2

Legal principles established

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  • A registered proprietor is taken as absolute and indefeasible owner of land under Section 26 of the Land Registration Act, absent proof of fraud, misrepresentation or collusion.

Court orders

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  1. 1.The Land Registrar and Surveyor Vihiga to visit Land Parcel Tiriki/Tigoi/1286 and confirm its ground boundaries and point them out to the parties.
  2. 2.Upon boundaries being confirmed and pointed out, the defendant to give vacant possession of any portion of the suit land under his possession within 90 days, and in default an eviction order to issue.
  3. 3.The Defendant to pay the Plaintiff's costs of the suit and counterclaim.

Authorities

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Legislation

  • Land Control ActSections 6 and 8
  • Land Registration ActSection 26
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land title and occupation

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, "Violet Ingado Kimanani v Francis Kivati Kadasira [2018] KEELC 3185 (KLR)", Case Analysis (2018). Not stated in judgment (suit over Land Parcel Tiriki/Tigoi/1286). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3185/eng@2018-05-30

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