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ELCAllowedELC Case No. 59 of 2016· [2018] KEELC 3959 (KLR)

Livingstone Aluvanze Isaji v Elizabeth Namwaya Bulinya & another [2018] KEELC 3959 (KLR)

Environment and Land Court
6 March 2018
1,481 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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A Kenyan court ruled that burying a relative on someone else's land is unlawful, and the registered owner can evict the family.

What this practically means

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Executive summary

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The plaintiff, Livingstone Aluvanze Isaji, sued Elizabeth Namwaya Bulinya and Martine Wekesa Bulinya at the Environment and Land Court at Kakamega, claiming to be the sole absolute registered proprietor of KAKAMEGA/MOI'S BRIDGE/1381 (approximately 0.41 hectares), purchased on 2 April 2014 for Ksh. 600,000 from the previous registered proprietor, Christopher Bulinya Wabuge. He alleged that the defendants trespassed on the land, erected structures, ignored demand letters, carried out funeral arrangements and interred the body of the late Metrine Nangekhe on the suit land on or about 23 April 2016 without his authority. He sought a declaration that the trespass, funeral arrangements and interment were unlawful and a nullity, an order of eviction, an injunction restraining further burial or interference, plus costs and interests. The defendants never entered appearance, filed no defence and did not attend the hearing despite service, so the suit proceeded undefended. PW1, the plaintiff, testified and produced the sale agreement, title deed and demand letters. The court applied sections 24(a) and 26(1) of the Land Registration Act, holding the certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or a corrupt scheme, none of which was shown. Following Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another (2013) eKLR, the court found the plaintiff's case proved on a balance of probabilities. It declared the trespass, funeral arrangements and interment unlawful and a nullity, gave the defendants and their agents three months to vacate, in default of which eviction would issue forthwith, and awarded costs to the plaintiff.

Key legal issues

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01

Indefeasibility of title in an undefended claim

Holding

The plaintiff's certificate of title was taken as prima facie evidence of absolute and indefeasible ownership; no evidence of fraud, misrepresentation or illegality was adduced, so the title stood unimpeached and the plaintiff proved his case on a balance of probabilities.

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and render the title prima facie evidence of indefeasible ownership subject only to challenge on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The defendants never entered appearance, filed no defence and did not attend the hearing despite service, so no evidence rebutting the title was adduced. The court, following Elijah Makeri Nyangw'ra, found no basis to impugn the title and held the plaintiff's case proved on a balance of probabilities.

p. 3
02

Trespass and burial on another's land

Holding

The defendants' trespass, funeral arrangements and interment of the deceased on the plaintiff's land were unlawful and a nullity, warranting eviction.

Reasoning

The plaintiff purchased the suit land for valuable consideration from the previous registered proprietor, was registered as absolute proprietor and holds a valid title deed free of encumbrances. The defendants erected structures and buried the late Metrine Nangekhe on the land without the plaintiff's authority, acts inconsistent with his proprietary rights under Article 40 of the Constitution. The court found the burial and funeral arrangements unlawful and a nullity and ordered the defendants to vacate within three months, failing which eviction to issue forthwith.

p. 1

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person under section 24(a) of the Land Registration Act.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership and is challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme.

Court orders

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  1. 1.A declaration that the acts of trespass by the defendants, the carrying out of funeral arrangements and interment of the late Metrine Nangekhe-deceased into the land parcel known as KAKAMEGA/MOI'S BRIDGE/1381 are unlawful and a nullity
  2. 2.The defendants jointly and severally together with their servants and or agents or any other persons are given 3 months from the date of judgment to vacate the suit parcel KAKAMEGA/MOI'S BRIDGE/1381 and in default eviction order to issue forthwith
  3. 3.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (1)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (land ownership and title disputes); Article 40 of the Constitution of Kenya, 2010 invoked on proprietary rights

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 Aluvanze Isaji v Elizabeth Namwaya Bulinya & another [2018] KEELC 3959 (KLR)", Case Analysis (2018). ELC Case No. 59 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3959/eng@2018-03-06

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