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ELCDismissedELC Case No. 618 of 2014· [2019] KEELC 3409 (KLR)

Benard Macho Omwitakho v Attorney General [2019] KEELC 3409 (KLR)

Environment and Land Court
14 May 2019
NMN.A. Matheka
1,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner lost his bid to correct his title's acreage because he brought no surveyor's report and had signed the very documents recording the smaller size.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R. No. E. Wanga/Isongo/3182, sued the Attorney General alleging that the Land Registrar fraudulently, illegally or negligently recorded the parcel's size as 2.77 Ha instead of 3.65 Ha following subdivision of his original parcel E. Wanga/Isongo/2684, leaving 0.88 Ha unregistered. He sought rectification of the register and a corrected title deed. The defendant denied negligence, contending that the acreage was recorded pursuant to mutation forms signed by the plaintiff himself, which showed 2.77 Ha and 0.60 Ha for the two resulting parcels, so any misrepresentation was the plaintiff's own doing. The court, applying sections 24(a) and 26(1) of the Land Registration Act and the decision in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another (2013) eKLR, reiterated that titles are prima facie indefeasible and challengeable only on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme. It found the plaintiff had produced no surveyor's report to prove the actual ground acreage, while the mutation form signed by the plaintiff dated 8th June 2009 recorded 2.77 Ha. The plaintiff thus failed to establish his case on a balance of probabilities. The court advised him to engage a surveyor, held it could not make orders in vain, and dismissed the suit with costs.

Key legal issues

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Whether the plaintiff proved fraud, illegality or negligence by the defendant in recording the acreage of L.R. No. E. Wanga/Isongo/3182

Holding

The plaintiff failed to discharge the burden of proof; no surveyor's report was produced to establish the actual acreage, and the mutation form signed by the plaintiff himself showed the parcel as 2.77 Ha

Reasoning

The court noted that title under the Land Registration Act is prima facie absolute and indefeasible, challengeable only on fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme. The plaintiff produced no surveyor's report to prove the actual ground acreage, while the defendant annexed a mutation form dated 8th June 2009 signed by the plaintiff indicating the parcel at 2.77 Ha. On a balance of probabilities the claim failed.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership of that land in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The plaintiff's suit is dismissed with 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 under the Environment and Land Court Act over disputes relating to land registration

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, "Benard Macho Omwitakho v Attorney General [2019] KEELC 3409 (KLR)", Case Analysis (2019). ELC Case No. 618 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3409/eng@2019-05-14

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