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ELCDismissedELC Case No. 40 of 2017· [2019] KEELC 1679 (KLR)

Alfred Nyongesa Wakhungu v Gabriel Makokha Wakhungu Francis Amwayi Mayabi [2019] KEELC 1679 (KLR)

Environment and Land Court
25 September 2019
NMN.A. Matheka
1,663 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who ignored a tribunal decision adopted as a court judgment lost his 2017 challenge to the resulting land subdivision.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R. No. North Wanga/Matungu/235 (approx. 4.79 Ha), sued the two defendants seeking cancellation of sub-divisions Nos. North Wanga/Matungu/2799 and 2800 and restoration of the original parcel. He contended that the Matungu Land Disputes Tribunal, in Claim No. 15 of 2008, had no jurisdiction to determine title to land, and that the sub-division effected on 14th January 2016 pursuant to that tribunal's decision (adopted as judgment in Kakamega Chief Magistrate's Misc. Award No. 342 of 2008) was null, void and undertaken without due process to justify prosecution of his children in Mumias Criminal Case No. 185 of 2015. The 1st defendant, a step-brother of the plaintiff, pleaded res judicata and limitation, asserted the tribunal had jurisdiction, and counter-claimed for dismissal of the suit, a permanent injunction and the plaintiff's eviction from parcel 2800. The 2nd defendant pleaded that he bought 1½ acres of parcel 2800 for Kshs. 350,000/- and resides there. The defendants failed to attend court to prosecute the counter-claim, which was dismissed with no orders as to costs. The court considered sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and applied Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another (2013) eKLR. It found the suit land was sub-divided pursuant to the court order adopting the tribunal award; the plaintiff never appealed on the jurisdiction issue but filed a fresh suit in 2017, which the court held was an abuse of the court process. 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

Title is protected and challengeable only on the two statutory grounds of fraud/misrepresentation or illegal, unprocedural or corrupt acquisition

Reasoning

The court invoked 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. The court adopted the position in Elijah Makeri Nyangw'ra that even a title in the hands of an innocent third party can be impugned only if the statutory exceptions are proved.

p. 2
02

Abuse of court process / finality of the adopted tribunal award

Holding

The plaintiff, having not appealed the adopted tribunal decision, could not challenge it through a fresh suit; the suit was an abuse of process and was dismissed

Reasoning

The sub-division of plot 235 flowed from the tribunal decision adopted as a judgment of the Resident Magistrate's Court in Kakamega Chief Magistrate's Misc. Award No. 342 of 2008. The plaintiff did not appeal on the jurisdiction issue but instead filed a fresh suit in 2017. The court held that any challenge ought to have been pursued in that matter, and dismissed the suit as unmerited.

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/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • A party who did not appeal a tribunal decision adopted as a court judgment cannot challenge it by filing a fresh suit; doing so is an abuse of the court process

Court orders

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  1. 1.The plaintiff's suit is dismissed with no orders as to costs
  2. 2.The 1st defendant's counter-claim is dismissed with no orders as to costs (defendants failed to attend court to prosecute it)

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions ActCap 22 Laws of Kenya (referred to in the 1st defendant's defence)

Cases cited (1)

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction (no specific constitutional or statutory provision invoked 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, "Alfred Nyongesa Wakhungu v Gabriel Makokha Wakhungu Francis Amwayi Mayabi [2019] KEELC 1679 (KLR)", Case Analysis (2019). ELC Case No. 40 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1679/eng@2019-09-25

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