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ELCAllowed· [2019] KEELC 2874 (KLR)

Omar Swale v Halima Bakari & another [2019] KEELC 2874 (KLR)

Environment and Land Court
26 June 2019
JOJ. O. Olola
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A registered Kenyan land title trumped a family's claim of purchase, and the court ordered their eviction and removal of the caution on the property.

What this practically means

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Executive summary

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The Plaintiff, Omar Swaleh, sued the two Defendants seeking vacant possession of Title No. Tana River/Witu/589, eviction, a permanent injunction, and removal of a Caution registered against the title on 30th April 2015. The Plaintiff, allocated the land in 1995 by the Lands Adjudication and Settlement Department, produced a Letter of Offer, a Discharge of Charge from the Settlement Fund Trustees, and a Title Deed showing registration in 2006. He testified that in 2001 he permitted the late Mohamed Awadh Gawana, husband of the 1st Defendant and father of the 2nd Defendant, to cultivate a small portion; after Mohamed's death in October 2003, the Defendants claimed the deceased had purchased the entire property and refused to vacate. The Defendants' Defence asserted beneficial ownership through the alleged purchase, but they did not attend court to give evidence, their advocates closing their case on 19th July 2018 after failing to trace them. The court applied Section 26(1) of the Land Registration Act, holding the Plaintiff's Certificate of Title conclusive evidence of absolute and indefeasible ownership absent fraud, and relied on Section 73(1) for power to remove the Caution. Judgment was entered for the Plaintiff as prayed, with costs awarded to the Plaintiff.

Key legal issues

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01

Indefeasibility of the Plaintiff's title

Holding

The Plaintiff, as registered proprietor, is the absolute and indefeasible owner; the Defendants offered no evidence to displace the title.

Reasoning

The Plaintiff proved allocation of the land in 1995 via a Letter of Offer, payment of requisite fees, issuance of a Discharge of Charge by the Settlement Fund Trustees and registration in 2006. Under Section 26(1) of the Land Registration Act his Certificate of Title is conclusive evidence of ownership absent fraud or irregularity. The Defendants, despite over a year being granted, never appeared or tendered rebuttal, so nothing contradicted the Plaintiff's case.

p. 2
02

Removal of the Caution and the Defendants' continued occupation

Holding

The Caution lodged by the Defendants inhibiting the Plaintiff's use of his land was removable under Section 73(1) of the Land Registration Act, and the Defendants had no colour of right to occupy.

Reasoning

The Defendants entered the land only as lessees of a small portion in 2001 through the late Mohamed Awadh Gawana, and after his death claimed the whole property. Their registration of a Caution on 30th April 2015 inhibited the Plaintiff's enjoyment of the land. The court, exercising its statutory power, ordered removal of the caution and granted the prayers for possession, eviction and injunction as unopposed.

p. 2

Legal principles established

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  • A Certificate of Title is conclusive evidence of absolute and indefeasible ownership unless procured irregularly or through fraud or corruption.
  • The court has power under the Land Registration Act to order removal of a caution lodged against a registered owner's title.

Court orders

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  1. 1.Judgment entered for the Plaintiff as against the Defendants as prayed in the Plaint, including vacant possession of Tana River/Witu/589, eviction of the Defendants and permanent injunction
  2. 2.Removal of the Caution dated 21st April 2015 and registered on 30th April 2015 against the suit property
  3. 3.Plaintiff awarded the costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 73(1)
Jurisdiction invoked
Original civil jurisdiction over the suit, including Sections 26(1) and 73(1) of the Land Registration Act

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, "Omar Swale v Halima Bakari & another [2019] KEELC 2874 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2874/eng@2019-06-26

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