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ELCPartially AllowedELC Case No. 17 of 2017· [2019] KEELC 2538 (KLR)

Salome Liarim v Daniel Shaban (Environment & Land Case 17 of 2017) [2019] KEELC 2538 (KLR)

Environment and Land Court
26 June 2019
NMN.A. Matheka
1,309 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 sued the defendant, her son, claiming vacant possession, eviction and a permanent injunction in respect of land parcel No. Nzoia/Moi's Bridge/Block 1/3093 registered in her name. She pleaded that she acquired the land through work done for her deceased sister, that the defendant joined her, became cruel and hostile, chased her away and colluded with the area Chief to place a caution on the land, rendering her landless. The defendant denied the allegations and filed a counterclaim asserting that he contributed Ksh. 100,000 towards the purchase price on a mutual understanding that the plaintiff would sub-divide and transfer approximately one acre to him; he sought dismissal of the suit, cancellation of the title and an order compelling transfer of one acre, with the Deputy Registrar empowered to sign transfer forms in default. At the hearing the plaintiff failed to attend despite service of a hearing notice, and her case was dismissed for non-attendance, the court proceeding with the counterclaim. The defendant testified, supported by DW2, the plaintiff's uncle, who stated that the plaintiff had given the defendant one acre on which he resided, but whose evidence contradicted the claim that the defendant contributed to the purchase price. The court applied sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision on the two grounds on which title may be challenged. Finding no evidence of the defendant's contribution and no fraud, misrepresentation, illegality or corrupt scheme on the plaintiff's part, the court found the plaintiff the absolute registered owner, dismissed the counterclaim as unproved on a balance of probabilities, and made no order as to costs given the mother-son relationship.

Key legal issues

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01

Indefeasibility of the plaintiff's registered title

Holding

The plaintiff is the absolute registered owner of the suit land and her title stands, as no fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme was proved

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in a registered proprietor and render the certificate of title prima facie evidence of indefeasible ownership, subject only to proof of fraud or misrepresentation to which the proprietor is party, or acquisition illegally, unprocedurally or through a corrupt scheme. On the evidence, none of these grounds was established against the plaintiff, whose registered ownership was therefore affirmed.

p. 2
02

Whether the defendant's counterclaim for cancellation of title and transfer of one acre was proved

Holding

The counterclaim was not proved on a balance of probabilities and was dismissed

Reasoning

The defendant claimed he contributed Ksh. 100,000 towards the purchase price on an understanding that one acre would be transferred to him. However, DW2's evidence contradicted the claim of contribution, and no evidence of the defendant's contribution to the purchase price was adduced. The only documentary evidence showed a dispute and an intention to place a caution on the land. Without proof of contribution or fraud, the counterclaim failed.

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 or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The plaintiff's suit is dismissed for non-attendance (the plaintiff failed to attend court during the hearing despite having been served with the hearing notice)
  2. 2.The defendant's counterclaim is dismissed for want of proof on a balance of probabilities
  3. 3.No orders as to costs, each party bearing their own costs as the parties are mother and son

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
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied by the court's subject-matter jurisdiction over land title disputes under the Land Registration Act); no express provision cited

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, "Salome Liarim v Daniel Shaban (Environment & Land Case 17 of 2017) [2019] KEELC 2538 (KLR)", Case Analysis (2019). ELC Case No. 17 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2538/eng@2019-06-26

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