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ELCAllowedELC Case No. 191 of 2013· [2019] KEELC 2210 (KLR)

Alfred Akhisero Divisi v Charles Mambili [2019] KEELC 2210 (KLR)

Environment and Land Court
24 July 2019
NMN.A. Matheka
831 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R. Kakamega/Virembe/255, sued the defendant, owner of the adjoining L.R. Kakamega/Virembe/256, claiming that a government access road to his parcel running through the defendant's land had been closed by the defendant since 1994. He sought an order compelling the defendant to reopen the road and, in default, an order that the Land Registrar Kakamega and the District Surveyor Kakamega visit and survey both parcels and open the road, plus costs and interest. The defendant denied the allegations, gave no oral evidence, and submitted that the matter should be handled by the Land Registrar. The court, presided over by N.A. Matheka J, considered 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 as prima facie evidence of indefeasible ownership, challengeable only on fraud or misrepresentation or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The court also applied Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another (2013) eKLR on the two instances in which title may be impugned. Finding the plaintiff's ownership undisputed, and noting that PW2 corroborated the plaintiff's testimony and the Land Registrar's report (PEx 5) confirmed the existence and blocking of the access road without challenge, the court held the plaintiff had proved his case on a balance of probabilities. The defendant was ordered to open the access road as surveyed by the government, failing which the Land Registrar and District Surveyor were to survey and open it, with costs to the plaintiff.

Key legal issues

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01

Indefeasibility of title and appurtenant rights of access

Holding

The plaintiff, as registered proprietor, proved his entitlement to the access road appurtenant to his land; the defendant's blocking of the road violated those appurtenant rights

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 title indefeasible save for fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. The plaintiff's ownership was not disputed, and evidence including the Land Registrar's report confirmed the existence and blocking of the access road.

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02

Standard of proof in civil land claims

Holding

The plaintiff proved his case on a balance of probabilities through unchallenged testimony and the Land Registrar's report

Reasoning

PW2 corroborated the plaintiff's testimony, and PEx 5 (the Land Registrar's report) confirmed that an access road existed but was blocked. The defendant gave no oral evidence and the evidence was unchallenged, satisfying the civil standard of proof on a balance of probabilities.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership together with all rights and privileges appurtenant thereto
  • 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

Court orders

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  1. 1.The defendant is to open the access road to the plaintiff's land L.R. Kakamega/Virembe/255 as surveyed by the government
  2. 2.In default, the Land Registrar Kakamega and the District Surveyor Kakamega to visit L.R. Kakamega/Virembe/255 and L.R. Kakamega/Virembe/256, survey the same and open the access road to the plaintiff's land L.R. Kakamega/Virembe/255
  3. 3.Costs to the plaintiff

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 (original jurisdiction over land disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Akhisero Divisi v Charles Mambili [2019] KEELC 2210 (KLR)", Case Analysis (2019). ELC Case No. 191 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2210/eng@2019-07-24

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