Livingstone Aluvanze Isaji v Elizabeth Namwaya Bulinya & another [2018] KEELC 3959 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Indefeasibility of title in an undefended claim
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.
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.
Trespass and burial on another's land
The defendants' trespass, funeral arrangements and interment of the deceased on the plaintiff's land were unlawful and a nullity, warranting eviction.
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.
Legal principles established
#- 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
#- 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.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.Costs of the suit to the plaintiff
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.