Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. 250 of 2016· [2019] KEELC 961 (KLR)

Dariya Shinyanzwa & another v Josephat Lisiola Lishenga & 4 others [2019] [2019] KEELC 961 (KLR)

Environment and Land Court
5 November 2019
2,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Kakamega Environment and Land Court confirmed that a registered landowner's title is protected unless fraud is proven, and ordered the occupying family to vacate.

What this practically means

#

Executive summary

#
The plaintiffs sued over land parcel Isukha/Shirere/1183. The first plaintiff, its registered proprietor, inherited it from her late mother. She sold it to the second plaintiff for Ksh. 900,000.00 under an agreement of 16th March 2012. The third defendant advocate, instructed to effect the transfer, handed the second plaintiff a title certificate that turned out to be a forgery; he was tried and acquitted under section 210 of the Criminal Procedure Code. The first and second defendants, sons of the late Alphonce Lishenga Shunza, occupied part of the land and claimed an interest by adverse possession, relying on HCCC No. 52 of 2007 (OS) and CMCC No. 323 of 2007, and raised a preliminary objection that the suit was time-barred and defective. Applying sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision, the court held the first plaintiff's title absolute and indefeasible, the defendants having failed to prove fraud. It found the two prior cases abated for want of substitution within one year of Alphonce Lishenga Shunza's death on 26th August 2010. The claim against the third defendant was dismissed, his documents having been returned and his duties performed. General damages for trespass were refused as unproved. The court ordered the first and second defendants to vacate within six months, failing which eviction would issue; ordered removal of the cautions and restrictions within six months; and directed that each party bear its own costs.

Key legal issues

#
01

Indefeasibility of the first plaintiff's registered title

Holding

The first plaintiff is the absolute proprietor of Isukha/Shirere/1183 and her title is indefeasible; the defendants failed to prove fraud or 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 render the certificate of title prima facie evidence of indefeasible ownership subject only to challenge for fraud, misrepresentation, or acquisition through an illegal, unprocedural or corrupt scheme. Having found the first plaintiff registered as proprietor and no proof of fraud by the defendants, the court held her title unassailable, and the second plaintiff holds a beneficial interest as purchaser.

p. 3
02

Abatement of the adverse possession proceedings on the death of Alphonce Lishenga Shunza

Holding

HCCC No. 52 of 2007 (OS) and CMCC No. 323 of 2007 abated as no substitution application was filed within one year of the deceased's death on 26th August 2010

Reasoning

The late Alphonce Lishenga Shunza had filed an adverse possession claim against the first plaintiff, and the first plaintiff had a pending caution-removal claim against him. Both were pending at his death. Since no application for substitution was made within one year, the cases abated, removing any legal basis for the defendants' claimed interest and for the caution and restriction entries on the register.

p. 3
03

Liability of the third defendant advocate

Holding

The claim against the third defendant was dismissed; he performed his professional duties and returned all documents

Reasoning

The third defendant was instructed to prepare the sale agreement, was paid, and although he was criminally charged with forgery-related offences he was acquitted under section 210 of the Criminal Procedure Code. All documents including the original title had been returned to the first plaintiff without dispute. The court held the claim against him must fail, observing that professional complaints lie with the Advocates Complaints Commission.

p. 3

Legal principles established

#
  • Registration vests absolute ownership of land in the registered proprietor
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or where acquired illegally, unprocedurally or through a corrupt scheme
  • A cause abates where a plaintiff dies and no application for substitution is filed within one year of death

Court orders

#
  1. 1.The 1st and 2nd defendants, their servants, agents and relatives are to vacate the suit Land Parcel No. Isukha/Shirere/1183 within six (6) months from the date of judgment and in default eviction order to issue
  2. 2.The cautions and restrictions placed on the suit land Parcel No. Isukha/Shirere/1183 be removed within six (6) months from the date of judgment
  3. 3.Each party to bear its own costs
  4. 4.Suit against the third defendant dismissed

Authorities

#

Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Criminal Procedure CodeSection 210

Cases cited (1)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land registration and title (Environment and Land Court Act); not expressly stated in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dariya Shinyanzwa & another v Josephat Lisiola Lishenga & 4 others [2019] [2019] KEELC 961 (KLR)", Case Analysis (2019). ELC Case No. 250 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/961/eng@2019-11-05

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