Peter Ochola Omolo v Evans Kidero [2018] KEELC 4157 (KLR)
The bottom line
#A Kenyan court cancelled a landowner's title because he could not prove he bought the land from its real, registered owners.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant's title to Kisumu/Korando/4457 was procedurally and regularly obtained
The title was not procedurally, regularly or legally obtained; it is impugned under Section 26 of the Land Registration Act
The green card showed the land first registered on 28 May 1996 in the joint names of Okeyo Teti and George R. Midika and later transferred to the Defendant in 2008. The Defendant's alleged vendors, Miriti Mbui Muthara and Antony Levis Kigathi Miriti, were never registered proprietors, so they had no capacity to transfer the land. The Defendant did not avail the land control board consent or transfer forms, and did not discharge his burden of proving legality of acquisition once his title was questioned.
Whether the Plaintiff proved his purchase of a 144m x 72m portion from the suit land
The Plaintiff proved the sale agreement of 1 December 2005 with PW2 over a portion of Kisumu/Korando/4457, though PW2 lacked capacity as the land was not registered in his name
The sale agreement produced as exhibit 1 confirmed the Plaintiff bought a portion of the parcel from PW2, whose evidence that he sold the remainder to Murithi Kimwa, from whom the Defendant ultimately bought, was uncontroverted. However, the land was not registered in PW2's name at the time of sale, belonging to his late grandfather's estate, so no transfer could be ordered to the Plaintiff in these proceedings.
Whether the Plaintiff should recover the specific portion bought
The court declined to order transfer of the portion to the Plaintiff in these proceedings, leaving it to the succession court
The vendor PW2's grandfather, the purported owner, had died before the transactions and no confirmed grant existed. Rectifying the Plaintiff's interest required administration of that estate first, so the Plaintiff was left to pursue his remedies against his vendor and in succession proceedings.
Legal principles established
#- When a registered proprietor's root of title is under challenge, the proprietor must go beyond the instrument of title and prove the legality of how he acquired the title
Court orders
#- 1.A declaration that the Defendant acquired registration as proprietor of land parcel Kisumu/Korando/4457 unprocedurally, irregularly and illegally
- 2.The Land Registrar, on receipt of a copy of the order, to cancel and/or revoke the Defendant's title over Kisumu/Korando/4457 by deleting entry numbers 3 and 4 and reverting ownership to Okeyo Teti and George R. Midika as in entries 1 and 2
- 3.The Plaintiff and Defendant may thereafter pursue their claims against those who sold to them the suit land or portions thereof in accordance with the law
- 4.Each party bears his own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land, the Tribunal having recommended that the claim be filed in this court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Ochola Omolo v Evans Kidero [2018] KEELC 4157 (KLR)", Case Analysis (2018). Kisumu C.M. Land Case arising from Kisumu East Land Disputes Tribunal Case No. 40 of 2010 (suit commenced by plaint dated 19th January 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4157/eng@2018-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.