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ELCAllowedEldoret Case No. 848 of 2012· [2019] KEELC 402 (KLR)

Charles Chebore Chelimo & another v Jackson Cherono [2019] KEELC 402 (KLR)

Environment and Land Court
4 December 2019
MOM. A. ODENY
1,204 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that an unchallenged title deed proves land ownership, and anyone occupying that land without rights is a trespasser.

What this practically means

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Executive summary

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By a plaint dated 6th July 2016, the plaintiffs sued the defendant seeking a permanent injunction restraining him from interfering with, trespassing on, or dealing with their parcel of land known as BARINGO/KIBOINO 'A'7 measuring 0.58ha, plus costs. The plaintiffs, through the 1st plaintiff holding a power of attorney from the 2nd plaintiff (his wife), testified and produced the title deed, official search, payment receipts, PIN certificate, consent application forms, land control board consent and survey map. They explained that the land originally belonged to a family, was later registered in the name of a company (Kabarnet Quarry Ltd), and was subdivided after a resolution and cessation of business. The defendant filed a written statement of defence and counterclaim but did not attend the hearing despite being served; the defence case was closed and the counterclaim went unprosecuted, leaving the plaintiffs' claim uncontroverted. The court framed three issues: bona fide ownership, trespass, and entitlement to the prayers sought. Relying on sections 24, 25 and 26 of the Land Registration Act and the Court of Appeal decision in Munyu Maina v Hiram Gathiha Maina, the court held that the plaintiffs' title was unchallenged and that they were the bona fide owners. Applying definitions of trespass from Black's Law Dictionary and Clark & Lindsell on Torts, the court found the defendant a trespasser with no right over the land. A permanent injunction issued as prayed, and the defendant's counterclaim was dismissed with costs to the plaintiff.

Key legal issues

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01

Bona fide ownership of the suit land

Holding

The plaintiffs proved bona fide ownership through an unchallenged title deed, official search, mutation form and land control board consent

Reasoning

The plaintiffs produced a title deed in their names and documentation showing the process of acquisition and registration, including subdivision from BARINGO/KIBOINO/A1 and consent from the Land Control Board for transfer from Kabarnet Quarry Ltd. The defence and counterclaim were dismissed after the defendant failed to attend despite service, leaving the claim uncontroverted and the title unchallenged as fraudulent or unprocedural.

p. 2
02

Trespass by the defendant

Holding

The defendant is a trespasser as he has no right or title to the suit land

Reasoning

Relying on Black's Law Dictionary (10th Edition) and Clark & Lindsell on Torts (18th Edition), the court applied the definition of trespass as wrongful entry or unjustifiable intrusion upon land in possession of another. Since the defendant was not the owner of the suit land and had no right over it, his entry and interference constituted unjustifiable intrusion.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition
  • Where a registered proprietor's root of title is challenged, the proprietor must prove the legality of acquisition beyond the title instrument

Court orders

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  1. 1.A permanent injunction restraining the defendant by himself, his servants and/or agents from interfering, trespassing, intermeddling and or in any other manner dealing with the plaintiff's use, possession and or ownership of LAND PARCEL NO. BARINGO/KIBOINO 'A'7 measuring 0.58ha or thereabout
  2. 2.Costs of the suit to the plaintiffs
  3. 3.The defendant's counterclaim dismissed with costs to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (2)

  • Munyu Maina vs Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Alexander Sakari Majani v Joyce Ayuma Agalomba
    Eldoret Case No. 848 of 2012
Jurisdiction invoked
Original civil jurisdiction over land disputes (plaint dated 6th July 2016)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Charles Chebore Chelimo & another v Jackson Cherono [2019] KEELC 402 (KLR)", Case Analysis (2019). Eldoret Case No. 848 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/402/eng@2019-12-04

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