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ELCDismissedELC Case No. 51 of 2018· [2019] KEELC 2548 (KLR)

Henry Kafuma v Hezron Kayugira Elondo & 8 others [2019] KEELC 2548 (KLR)

Environment and Land Court
3 July 2019
NMN.A. Matheka
1,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court dismissed a landowner's claim that a neighbour's parcel was carved from his land, because an official survey showed no subdivision ever happened.

What this practically means

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Executive summary

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The plaintiff, registered owner of North/Maragoli/Chavakali/679 (purchased in 1970 from Stephen Mbone), sued nine defendants, all sued as registered trustees and/or office bearers of the Chavakali Meeting of Friends (Quakers) Church, including the Land Registrar Vihiga District. He alleged that the 1st to 4th defendants, sons of the late Elondo Lyagala (his former licencee), in cahoots with the Land Registrar, hived off a 0.5-acre parcel numbered North/Maragoli/Chavakali/5, had it registered in the name of the late Elondo Lyagala, and transferred it to the 6th defendant church on 4th August 2009. He sought declarations that the subdivision and title were null and void, cancellation of the subdivision with reversion of the land to his parcel, a permanent injunction and costs. The court applied sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision on the indefeasibility of title and its two exceptions. Relying on the joint report of the 5th defendant (Senior Assistant Land Registrar) and the District Surveyor (DEx3), the court found both parcels exist on the ground with areas larger than their certificates show, and that no subdivision was done to create the two parcels. It held the plaintiff failed to prove the alleged hiving off or fraud, dismissed the suit, and ordered each party to bear its own costs as neighbours.

Key legal issues

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01

Whether parcel North/Maragoli/Chavakali/5 was hived off the plaintiff's parcel North/Maragoli/Chavakali/679

Holding

It was not; the two parcels are separate and distinct and no subdivision was proved

Reasoning

The court relied on the report (DEx3) of the 5th defendant, a Senior Assistant Land Registrar, produced jointly with the District Surveyor after a court-ordered visit. The report showed both parcels exist on the ground with areas exceeding their registered sizes, and that no subdivision was done to create the two parcels. On this evidence the plaintiff's assertion of a fraudulent hiving off failed.

p. 2
02

Whether the plaintiff's claimed fraud vitiated the title to parcel North/Maragoli/Chavakali/5

Holding

Fraud was not established; in any event a party has no proprietary interest in a different and distinct parcel

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act and the Makeri Nyangw'ra decision, which protect title and allow challenge only on fraud/misrepresentation to which the proprietor is party or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The plaintiff did not prove fraud on a balance of probabilities.

p. 2
03

Whether the plaintiff discharged his burden of proof

Holding

He did not; the suit was dismissed

Reasoning

The plaintiff bore the burden of proving his allegations of fraudulent subdivision on a balance of probabilities. The official survey and registry evidence contradicted his claim that parcel 5 was created out of his land. Having failed on the core factual claim, the whole suit failed.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person (Section 24(a), Land Registration Act)
  • 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 (Section 26(1), Land Registration Act)
  • Title in the hands of an innocent third party can still be impugned if proved to have been obtained illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party will bear its own costs as the parties are neighbours

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
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (implied; 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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Cite this brief

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Cite this brief

Caselaw, "Henry Kafuma v Hezron Kayugira Elondo & 8 others [2019] KEELC 2548 (KLR)", Case Analysis (2019). ELC Case No. 51 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2548/eng@2019-07-03

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