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ELCDismissedELC Case No. 287 of 2015· [2019] KEELC 708 (KLR)

Odera Indakwa v Emmanuel Omumasaba & another [2019] KEELC 708 (KLR)

Environment and Land Court
26 November 2019
1,075 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 refused to cancel a land title because the plaintiff never proved fraud, confirming registered titles are strongly protected under law.

What this practically means

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Executive summary

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The plaintiff sued for nullification of the title deed issued on 23rd October 2015 over land parcel No. E. Wanga/Isongo/668 (about 10.5 acres), averring that the land was registered in his name as administrator of the estate in Kakamega HCCC Succession No. 539 of 2006, and that the 1st defendant, with the assistance of the 2nd defendant (Land Registrar Kakamega), caused the entire parcel to be transferred to the 1st defendant's name without any colour of right. He sought nullification of the title, general damages and costs. The 1st defendant, the plaintiff's cousin, countered that the plaintiff's letters of administration and title were nullified in the succession cause, that fresh letters issued to him, and that he lawfully acquired title and was subdividing the land to transfer 5½ acres to the plaintiff, and sought dismissal of the suit. The court applied sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision on the two statutory grounds for challenging title. It found as a fact, confirmed by the green card, that the plaintiff and the 1st defendant are joint registered proprietors. It perused the succession court's ruling confirming the grant, which directed the transfer of the land to the two beneficiaries in shares of 5 acres and 5½ acres respectively. The court held the plaintiff had pleaded but not proved fraud, and that any dispute should be pursued in the succession cause. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Indefeasibility of title under the Land Registration Act

Holding

The certificate of title is prima facie evidence of absolute and indefeasible ownership and may only be challenged on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and protect the certificate of title from challenge except on the two statutory grounds. It reinforced this with the Elijah Makeri Nyangw'ra decision, which held that title in the hands of a party can be impugned where obtained illegally, unprocedurally or through a corrupt scheme.

p. 2
02

Whether the plaintiff proved fraud to nullify the title

Holding

The plaintiff failed to prove the pleaded fraud and failed to prove his case on a balance of probabilities

Reasoning

Although fraud was pleaded in the plaint, the plaintiff adduced no proof of it. On the evidence, including the green card (DEx3), the court found as a fact that the plaintiff and the 1st defendant are joint registered proprietors of the suit parcel, and that the succession court's confirmed grant required the land to be transferred to the two beneficiaries. Any dispute should be pursued in the succession cause.

p. 2
03

Ownership of the suit land as between the parties

Holding

The plaintiff and the 1st defendant are joint registered proprietors of Land Parcel No. E. Wanga/Isongo/668

Reasoning

The court found as a matter of fact, confirmed by the copy of the green card (DEx3), that both the plaintiff and the 1st defendant are joint registered proprietors. The 1st defendant testified the title was first put in his name but was later rectified to read both names as per the court order arising from the confirmed grant in the succession cause.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A Certificate of Title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme
  • Disputes arising out of a confirmed grant in a succession cause should be pursued in that succession cause

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.No orders as to costs

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
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes on title to land

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, "Odera Indakwa v Emmanuel Omumasaba & another [2019] KEELC 708 (KLR)", Case Analysis (2019). ELC Case No. 287 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/708/eng@2019-11-26

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