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ELCAllowedELC Case No. 264 of 2015· [2019] KEELC 4146 (KLR)

Samwel Bulimo Babu v Jared Check Eleyo [2019] KEELC 4146 (KLR)

Environment and Land Court
19 March 2019
NMN.A. Matheka
1,040 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 cancelled land titles obtained by fraud, confirming that even registered owners can lose land acquired dishonestly from a deceased person.

What this practically means

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Executive summary

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The plaintiff, administrator ad litem of the estate of Sophia Asami Madangi (deceased), sued the defendant seeking a declaration that the defendant holds six subdivided parcels carved out of Kakamega/Sango/287 in trust for the estate, an order for their transfer to the estate, and costs. The plaintiff averred that by a certificate of confirmation of grant in Kakamega HC Succession Cause No. 381 of 1995, the deceased was entitled to be registered as proprietor of the original parcel, but on or about 13th June 2007 the defendant secretly and without her consent caused the parcel to be subdivided into six parcels (Kakamega/Sango/1928–1933) and transferred to himself. The defendant was served but did not enter appearance or file a defence; the case proceeded on the plaintiff's uncontroverted evidence, including the limited letters of administration ad litem, the confirmed grant, and search certificates. 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, held that although title is prima facie indefeasible, it may be challenged where acquired by fraud, misrepresentation, illegally, unprocedurally or through a corrupt scheme. Finding no evidence from the defendant, the court held the plaintiff had proved fraud and/or misrepresentation on a balance of probabilities. The suit was allowed in full: a declaration of trust over the six parcels was issued, the defendant was ordered to transfer them to the estate, and costs were awarded to the plaintiff.

Key legal issues

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01

Whether the defendant's titles over Kakamega/Sango/1928–1933 were impeachable as having been fraudulently or corruptly acquired

Holding

The court found the titles were obtained by fraud and/or misrepresentation and that the defendant holds them in trust for the deceased's estate

Reasoning

The plaintiff produced a certificate of confirmation of grant showing the deceased was entitled to be registered as proprietor of the original parcel. The defendant, though served, offered no evidence and advanced no defence. On the uncontroverted evidence, the court found the subdivision and transfer were done secretly and without the deceased's consent, satisfying the section 26(1) exceptions to indefeasibility, and proved on a balance of probabilities.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme

Court orders

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  1. 1.A declaration that the defendant holds land title numbers KAKAMEGA/SANGO/1928; 1929; 1930; 1931; 1932 and 1933; original Kakamega/Sango/287 in trust for the Estate of Sophia Asami Madangi – deceased
  2. 2.An order that the defendant do transfer the said land parcels numbers Kakamega/Sango/1928 to Kakamega/Sango/1933 to the Estate of Sophia Asami Madangi – deceased
  3. 3.Costs of the suit to the plaintiff

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
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied by the court's jurisdiction over land title disputes); the judgment does not expressly invoke a provision

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, "Samwel Bulimo Babu v Jared Check Eleyo [2019] KEELC 4146 (KLR)", Case Analysis (2019). ELC Case No. 264 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4146/eng@2019-03-19

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