Hanif Mohammed Yusufali & another v Thome Farmers No. 5 Limited & 2 others [2019] KEELC 2796 (KLR)
The bottom line
#A Nairobi court ruled that long-term occupants who paid part of an agreed purchase sum are entitled to land ownership, despite the registered owner's title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs acquired the Suit Property under the 1993 sale transaction with Cornelius Muthuri
The court found the Plaintiffs entitled to registration, but anchored on the consent in HCCC No. 6206 of 1992 rather than a direct entitlement as against the 2nd Defendant's title
The court accepted that the Plaintiffs purchased a share in the 1st Defendant and occupied the Suit Property since 1993. The 2nd Defendant did not dispute the occupation, was aware of it, accepted part-payment of Kshs. 20,000 under the consent, and failed to prove its counterclaim. Entitlement to registration was therefore conditional on payment of the balance of the consent sum with interest.
Whether the Plaintiffs acquired title by adverse possession
Not necessary to decide; the court resolved the matter on the sale/consent basis
Although the Plaintiffs pleaded adverse possession in the alternative, the court determined entitlement through payment under the consent recorded in HCCC No. 6206 of 1992. The 2nd Defendant's argument that litigation interrupted time was not supported by evidence of the status of that suit after 2002, and the 2nd Defendant took no eviction steps until 2017.
Whether the 2nd Defendant's counterclaim for eviction and injunction should succeed
Dismissed for failure of proof
The 2nd Defendant asserted title but did not dispute the Plaintiffs' long occupation of which it was aware, nor its acceptance of part-payment under the 2002 consent. It failed to adduce evidence of the continued pendency or prosecution of HCCC No. 6206 of 1992, and took no steps to evict until filing its counterclaim in 2017. The counterclaim therefore failed on a balance of probabilities.
Whether the Chief Land Registrar was a necessary party
He was not; no orders were sought against him
The court agreed with the 3rd Defendant that no remedies were sought against it. Where the suit seeks to have one party registered as owner, the decree should simply be extracted and served on the Land Registrar for registration; the Registrar need not defend such suits.
Legal principles established
#- A registered proprietor's certificate of title is conclusive proof of ownership, but the court may nonetheless direct transfer where occupation and part-payment under a recorded consent are established
- The Land Registrar should not be joined as a defendant in land ownership disputes where no specific orders are sought against the Registrar
- A party who does not prosecute a claim or take steps to evict after a consent order, and who accepts part-payment, cannot succeed on a counterclaim for eviction
Court orders
#- 1.The 2nd Defendant's counterclaim is dismissed with costs to the Plaintiff
- 2.The Plaintiffs are declared entitled to be registered as owners of the Suit Property upon payment to the 2nd Defendant of Kshs. 180,000/- being the balance of the consent sum plus interest at court rates from the date of the consent, payable within 90 days of the judgment
- 3.If the 2nd Defendant fails to transfer the Suit Property after payment, the Deputy Registrar of the court to execute the transfer
- 4.Each party to bear its own costs as between the Plaintiffs and the 2nd Defendant
- 5.The Plaintiffs to pay costs to the 3rd Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act (dispute over ownership of registered land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hanif Mohammed Yusufali & another v Thome Farmers No. 5 Limited & 2 others [2019] KEELC 2796 (KLR)", Case Analysis (2019). E.L.C Case No. 307 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2796/eng@2019-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.