Housing Finance Company of Kenya Ltd v Kenya Broadcasting Corporation & 2 others [2018] KEELC 4485 (KLR)
The bottom line
#Kenya's Land Court confirmed that a registered title holder wins over a long-term occupier who cannot prove the land was ever allocated to them.
What this practically means
#Executive summary
#Key legal issues
#Registered ownership of the suit properties
The plaintiff was the registered owner, holding certificates of lease issued on 15.3.1995
The plaintiff produced certified copies of certificates of leases and official searches showing registration. The 1st defendant's own witness confirmed its attempts to acquire title were futile, writing letters that produced no result.
Whether the transfer to the plaintiff was irregular, fraudulent or invalid
The transfer was not contested and was valid; the 3rd party had good title to pass
The 3rd party did not deny selling and transferring the properties. Correspondences showed the land reserved for KBC was unsurveyed and never alienated; the 1st defendant produced no evidence of fraudulent acquisition. Under sections 24, 25 and 26 of the Land Registration Act the 3rd party's registration was conclusive proof of ownership.
Whether the land was reserved/allocated to KBC or acquired under section 54 of the Kenya Broadcasting Act
No; no evidence proved any reservation or allocation to the 1st defendant
The correspondence showed only requests for future extensions which were not granted; the PDP plot B was unsurveyed and unalienated. No letter to the Commissioner of Lands requesting title was produced.
Adverse possession
Not made out; twelve years had not elapsed when the suit was filed
Time could not run against the Government before March 1995 when the 3rd party/plaintiff were registered. Twelve years would lapse on 13.3.2007, but the suit was filed on 16.2.2006 before the right crystallized.
Notice of intention to sue
Non-compliance was not fatal; no legal requirement was cited and a demand letter was issued 30 days before filing
The 1st defendant did not cite the law requiring notice given its capacity to sue and be sued. The demand letter dated 11.1.2006 preceded filing on 16.2.2006 by 30 days.
Loss and damages
Loss proved in the form of foregone rental income from October 2005 at Kshs 25,000 per month
The plaintiff was entitled to use and occupation; the 1st defendant denied its tenant occupation, depriving it of rental income at the agreed rent.
Legal principles established
#- Registration of title is conclusive proof of ownership and indefeasible subject to qualifications including fraud (section 26, Land Registration Act)
- He who alleges fraud bears the burden of proving it
- Time under the Limitation of Actions Act does not run against the Government for purposes of adverse possession
Court orders
#- 1.Judgment entered for the plaintiff as prayed in prayers (a)–(d) of the plaint (declarations of entitlement to possession, that the defendant is in wrongful occupation as trespassers, and not entitled to remain, and permanent injunction)
- 2.The 1st defendant's counter-claim dismissed
- 3.Costs of the suit awarded to the plaintiff
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land disputes (original first-instance suit by plaint)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Housing Finance Company of Kenya Ltd v Kenya Broadcasting Corporation & 2 others [2018] KEELC 4485 (KLR)", Case Analysis (2018). ELC Land Case No. 282 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4485/eng@2018-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.