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ELCAllowedELC Case No. 35 of 2016· [2019] KEELC 637 (KLR)

Rajab Musebe Ombunga v Miraji Yabunga Musebe & another [2019] KEELC 637 (KLR)

Environment and Land Court
26 November 2019
1,013 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled a land title obtained through an unexplained transfer, confirming registered titles can be challenged when fraud is proved.

What this practically means

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Executive summary

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The plaintiff sued the defendants in the Environment and Land Court at Kakamega seeking cancellation of the registration of land parcel S/Wanga/Lureko/478 in the name of the 2nd defendant and its reversion to the name of the deceased Hamisi Wesonga to enable the family to file succession proceedings. The plaintiff's case was that the 1st defendant, his aunty, was registered to hold the parcel in trust for him while he was a minor, and that the 2nd defendant, a stranger, fraudulently acquired the land. The 1st defendant corroborated the plaintiff. The 2nd defendant claimed the land belonged to her biological father, Hamisi Wesonga, that she had occupied it since the 1960s, that the plaintiff was not an heir to the estate, and sought dismissal with costs. The court applied sections 24(a) and 26(1) of the Land Registration Act, holding that registered title is indefeasible except on grounds of fraud or where acquired illegally, unprocedurally or through a corrupt scheme, citing Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna. Perusing the land register, the court found that Hamisi Wesonga was first registered in 1967, the 1st defendant in 2007 to hold in trust for the plaintiff, and the 2nd defendant in 2012; the court found that final transfer fraudulent as no explanation was given for it. The court found the 1st defendant held the land in trust for the plaintiff, that any other beneficiaries should pursue succession proceedings, and that the plaintiff proved his case on a balance of probabilities. The court allowed the suit, ordered cancellation of the 2nd defendant's title and reversion to the name of Hamisi Wesonga, and ordered the 2nd defendant to bear the costs of the suit.

Key legal issues

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01

Whether the title of the 2nd defendant could be challenged notwithstanding her registration as proprietor

Holding

Yes - the final transfer to the 2nd defendant was fraudulent, with no explanation given, so the title was obtained illegally and unprocedurally and was liable to cancellation

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor but permit challenge where the title was procured by fraud or acquired illegally, unprocedurally or through a corrupt scheme. Relying on Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna, the court noted title is protected only against two grounds of challenge. Perusal of the land register (PEx2) showed registration of Hamisi Wesonga in 1967, a 2007 registration by the 1st defendant to hold in trust for the plaintiff, and a 2012 transfer to the 2nd defendant for which no explanation was offered. That unexplained transfer was found fraudulent.

p. 2
02

Whether the 1st defendant held the suit land in trust for the plaintiff

Holding

Yes - the court found as a fact that the 1st defendant was to hold the suit land in trust for the plaintiff, corroborating the plaintiff's testimony

Reasoning

The plaintiff testified that the 1st defendant, his aunty, was to hold the parcel in trust for him while he was a minor. The 1st defendant corroborated this in her testimony, admitting the trust arrangement and accusing the 2nd defendant of fraudulent acquisition. The land register confirmed the 1st defendant was registered in 2007 'to hold in trust for the plaintiff.' The court found the trust established and directed that any other beneficiaries should be dealt with in succession proceedings.

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge only on grounds of fraud, misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The L.P. No. S/Wanga/Lureko/478 registered in the name of Sarafina Rabando Marachisi be cancelled and reverted back to its original number and in the name of the deceased Hamisi Wesonga
  2. 2.The 2nd defendant to bear the costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied; not expressly cited in the judgment)

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, "Rajab Musebe Ombunga v Miraji Yabunga Musebe & another [2019] KEELC 637 (KLR)", Case Analysis (2019). ELC Case No. 35 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/637/eng@2019-11-26

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