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ELCStruck OutELC Misc. Case No. 29 of 2017· [2019] KEELC 1658 (KLR)

Jeremiah Imbusi v Asitiba Imbusi [2019] KEELC 1658 (KLR)

Environment and Land Court
26 September 2019
NMN. A. Matheka
2,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The court struck out a family land claim because the people who now own the subdivided parcels were never joined as parties to the suit.

What this practically means

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Executive summary

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The plaintiff, brother of the defendant and son of the late Imbusi Esivere, sued claiming that half of land parcel No. West Bunyore/Ebusiekwe/1867, ancestral land of their father, was held in trust for him by the defendant. He alleged the defendant secretly registered himself as sole owner, subdivided the parcel into four portions (Nos. 2048-2051) on 10th October 1985 and transferred them to himself and third parties. He sought a declaration of trust over half the parcel, cancellation of the sub-divisions and transfers, re-subdivision into two equal portions and transfer of a half share to him, plus costs. The defendant was served but did not attend or adduce evidence. The plaintiff testified and produced green cards and a sketch map. The court considered sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title, and the case of Elijah Makeri Nyangw'ra on impugning titles acquired illegally, unprocedurally or through a corrupt scheme. Before reaching the merits, the court identified a threshold issue: the suit parcels were already registered in the names of third parties who had not been joined. Although Order 1 rules 9 and 10 and Article 159(2)(d) discourage defeating suits for non-joinder, the court distinguished the authorities of Zephir Holdings and Republic v District Land Registrar, Uasin Gishu, because the plaintiff never amended his pleadings to enjoin the proprietors. Holding that the non-joinder went to the substance of the case, since adverse orders could not issue against unjoined and unheard third parties, the court struck out the suit with no orders as to costs, advising the plaintiff to file a fresh suit against all parties involved.

Key legal issues

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01

Effect of non-joinder of registered proprietors of the suit parcels

Holding

Suit struck out because cancellation of titles could not be ordered without joining and hearing the third-party proprietors

Reasoning

The suit land had been subdivided in 1985 and transferred to third parties by 1993, before the suit was filed. Although Order 1 rules 9 and 10 and Article 159(2)(d) discourage defeating suits on joinder technicalities, the court distinguished the cited authorities because the plaintiff never amended pleadings to enjoin the proprietors. The non-joinder went to the substance of the case since the relief sought would adversely affect unjoined parties.

p. 3
02

Indefeasibility of title under the Land Registration Act

Holding

Section 26(1) renders a registered proprietor's title prima facie absolute and indefeasible, challengeable only on fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition

Reasoning

The court set out sections 24(a) and 26(1) of the Land Registration Act and applied Elijah Makeri Nyangw'ra, noting that title in the hands of an innocent third party can nonetheless be impugned where acquisition was illegal, unprocedural or through a corrupt scheme. However, the court did not reach the merits because of the non-joinder issue.

p. 2

Legal principles established

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  • A court cannot issue adverse orders against third parties who own or co-own the suit land where they have not been joined and heard, notwithstanding Order 1 rule 9 and Article 159(2)(d)

Court orders

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  1. 1.Suit struck out for non-joinder of necessary parties
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Civil Procedure RulesOrder 1 Rule 9
  • Civil Procedure RulesOrder 1 Rule 10
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Zephir Holdings Ltd Vs Mimosa Plantations Ltd, Jeremiah Maztagaro and Ezekiel Misango Mutisya
    (2014) eKLR
  • Republic Vs District Land Registrar, Uasin Gishu & Anor
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to ownership and title of 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, "Jeremiah Imbusi v Asitiba Imbusi [2019] KEELC 1658 (KLR)", Case Analysis (2019). ELC Misc. Case No. 29 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1658/eng@2019-09-26

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