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ELCPartially Allowed· [2019] KEELC 2485 (KLR)

Pijey Investment Company v Athman Mohamed & 2 others [2019] KEELC 2485 (KLR)

Environment and Land Court
11 July 2019
JOJ.O. Olola
2,215 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that land titles issued first are protected, cancelling a later title because no one proved fraud against the earlier owner.

What this practically means

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Executive summary

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Pijey Investments Ltd sued Athumani Bakari Mohamed, Samuel Chatia Kea and the Commissioner of Lands seeking a permanent injunction over parcels Chembe/Kibabamshe/691 and 692, a declaration that the Title Deed issued to the 1st and 2nd Defendants on 16th April 2002 was illegal and should be cancelled, surrender of that title, general damages for trespass and costs. The Plaintiff claimed it purchased the original parcel Chembe/Kibabamshe/408 in 1994, obtained a Certificate of Lease on 14th March 1994, subdivided it and obtained two Certificates of Lease in February 2000, but was thereafter prevented from enjoying the land by the Defendants who held a freehold title deed issued in 2002 purportedly with the collusion of the 3rd Defendant. The 1st and 2nd Defendants denied the claim and raised res judicata; the 3rd Defendant denied involvement in fraud. Simeon Sulubu Kaingu was joined as an Interested Party and claimed the original parcel belonged to his father since 1960, asking that both the Plaintiff's and the 1st Defendant's titles be cancelled and the land restored to him. Neither the Defendants nor the 3rd Defendant called any evidence. The court, applying Sections 26(1) and 24 of the Land Registration Act, found the Plaintiff's Certificates of Lease untainted by fraud or illegality, noting the police investigating officer found no evidence of wrongdoing. It held the Plaintiff to be the rightful and absolute owner, that the Defendants' occupation was trespass, and entered judgment for the Plaintiff on prayers (a), (b) and (c) of the Plaint, with costs to the Plaintiff. No damages for trespass were awarded.

Key legal issues

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01

Validity of the Plaintiff's title to the suit properties

Holding

The Plaintiff is the rightful and absolute owner; no evidence of fraud or illegality tainted its title.

Reasoning

The Plaintiff produced Certificates of Lease issued on 14th March 1994 and 25th February 2000 over the subdivided parcels. The Defendants, though issued with a Title Deed on 16th April 2002, called no evidence. There was no proof that the Plaintiff had relinquished or sold the land, and the investigating police officer found no evidence of wrongdoing in the Plaintiff's acquisition.

p. 3
02

Indefeasibility of registered title under the Land Registration Act

Holding

The Plaintiff's Certificate of Title could not be challenged absent proof of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition.

Reasoning

Applying Section 26(1) of the Land Registration Act, the court found nothing to suggest the Plaintiff's title was tainted by fraud or illegality, and neither the Defendants nor the Interested Party produced evidence demonstrating acquisition in contravention of the statutory exemptions.

p. 3
03

Trespass by the 1st and 2nd Defendants

Holding

Occupation of the suitland by the Defendants on the basis of their 2002 title, without the Plaintiff's consent, amounted to trespass.

Reasoning

Having found the Plaintiff to be the absolute owner, the court held that the Defendants' entry into and occupation of the land through their agents, founded on the purported 16th April 2002 title, constituted trespass justifying the injunctive and declaratory relief sought.

p. 3

Legal principles established

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  • 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.
  • Registration of a person as proprietor vests absolute ownership of the land in that person with all appurtenant rights.

Court orders

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  1. 1.Judgment entered for the Plaintiff as against the Defendants as prayed in Paragraphs (a), (b) and (c) of the Plaint
  2. 2.Permanent injunction restraining the Defendants from dealing with, selling, transferring, charging, mortgaging, entering or trespassing onto Chembe/Kibabamshe/691 and 692
  3. 3.Declaration that the Title Deed issued on 16th April 2002 is illegal and should be recalled by the Land Registrar for cancellation
  4. 4.Order that the 1st and 2nd Defendants surrender the Title Deed issued on 16th April 2002 to the Land Registrar for immediate cancellation
  5. 5.The Plaintiff to have the costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land title and trespass (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Pijey Investment Company v Athman Mohamed & 2 others [2019] KEELC 2485 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2485/eng@2019-07-11

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