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ELCDismissedELC Case No. 398 of 2017· [2019] KEELC 2572 (KLR)

Wilson Amwayi Roge v Priscillah Sulwe & 2 others [2019] KEELC 2572 (KLR)

Environment and Land Court
2 July 2019
NMN.A. Matheka
1,743 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a man's claim to family land because informal family agreements cannot transfer property still registered in a deceased person's name.

What this practically means

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Executive summary

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The plaintiff, a son and beneficiary of the estate of the late Johnson Elavisa Boge, sued the defendants - two widows of his deceased brothers and his brother - seeking their eviction from Plot No. 34 Lumakanda Market, special and general damages, unremitted rent from 2000, costs and interest. He claimed that prior to her death in 2014, his mother Sofia Busaka Elavisa and other beneficiaries agreed to give him the suit property in consideration of his offsetting an AFC loan encumbering parcel No. 88, and that the defendants were mere temporary occupants. The defendants countered that the suit property, still registered in the name of their deceased father, was left out of the succession cause distributing his estate; that all parties had contributed to construction and each occupies or leases a room; and that the property should be distributed through succession proceedings. The court applied sections 24(a) and 26(1) of the Land Registration Act on the indefeasibility of title and the decision in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another. Perusing the agreement produced by the plaintiff (PEx1), the court found not all beneficiaries were represented, and that since the property remained registered in the deceased's name, it ought to have been subjected to succession proceedings. The plaintiff having failed to establish his case on a balance of probabilities, the suit was dismissed with no orders as to costs given that the litigants are relatives.

Key legal issues

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01

Validity of the claimed family agreement allocating the suit property to the plaintiff

Holding

The agreement was ineffective because not all beneficiaries were represented and the property remained registered in the name of the deceased

Reasoning

The court perused the agreement (PEx1) and found that not all beneficiaries of the estate of the deceased were represented. Since the suit property remained registered in the name of the deceased Johnson Boge, the alleged family allocation could not vest title in the plaintiff. The proper avenue was succession proceedings to resolve distribution among all beneficiaries.

p. 2
02

Indefeasibility of title under the Land Registration Act

Holding

Title is absolute and indefeasible and challengeable only on the statutory grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, adopting the decision in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another, which holds that title in the hands of an innocent party can only be impugned on proof of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.

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 grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Court orders

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  1. 1.The plaintiff's suit is dismissed with no orders as to costs

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 over disputes relating to ownership and occupation of land

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, "Wilson Amwayi Roge v Priscillah Sulwe & 2 others [2019] KEELC 2572 (KLR)", Case Analysis (2019). ELC Case No. 398 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2572/eng@2019-07-02

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