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ELCDismissedELC Case No. 356 of 2013· [2019] KEELC 4374 (KLR)

Vincent Milimu Ashiono v Geoffrey Ashiono Luyundi [2019] KEELC 4374 (KLR)

Environment and Land Court
27 February 2019
NMN.A. Matheka
1,273 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 son's bid to cancel his step-brother's land title because he could not prove fraud or corruption.

What this practically means

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Executive summary

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The plaintiff, son and legal representative of the late Alphonse Ashiono Lumasi (registered proprietor of Kakamega/Shivakala/799 until his death on 28th December 2003), sued his step-brother, the defendant, alleging that the defendant had fraudulently caused the suit land to be transferred to himself on 25th September 2003, only days before the deceased died. The plaintiff, who obtained letters of administration in Kakamega High Court Succession Cause No. 44 of 2005, sought a declaration that the transfer was illegal, null and void, rectification of the register by cancelling the transfer entry and the defendant's title deed, a permanent injunction restraining dealings with the land, and costs. The defendant denied the fraud and asserted that the deceased had transferred the land to him before his death, and denied that he was born out of wedlock or was not a biological child of the deceased. The court applied sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and the two exceptions to it, and adopted the Elijah Makeri Nyangw'ra case on impugning titles acquired illegally, unprocedurally or through a corrupt scheme. Examining the title deed, death certificate and green card, the court found the defendant was registered as proprietor on 25th September 2003, before the deceased's death, and that there was no evidence of fraud or corrupt means. The plaintiff having failed to prove his case on a balance of probabilities, the suit was dismissed with no orders as to costs, the parties being relatives.

Key legal issues

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01

Indefeasibility of title and the exceptions under sections 24 and 26 of the Land Registration Act

Holding

The defendant's registered title is prima facie indefeasible and could only be challenged on proof of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and shield certificates of title from challenge except on fraud/misrepresentation to which the proprietor is a party or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The court found the register and green card showed the defendant was registered on 25th September 2003, before the deceased died on 28th December 2003, and saw no evidence of fraud.

p. 2
02

Whether the plaintiff discharged the burden of proof on a balance of probabilities

Holding

The plaintiff failed to prove his case on a balance of probabilities

Reasoning

Although the plaintiff alleged that the transfer was fraudulent because an official search on 31st December 2003 showed the land still registered in the deceased's name, the court found from the title deed and green card that the defendant was registered on 25th September 2003, before the deceased's death on 28th December 2003, and that there was no evidence of fraud or corrupt means, so the claim failed.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests in that person absolute ownership of the land
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • A title in the hands of an innocent third party can be impugned if proved to have been obtained illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party to bear their own costs (no orders as to costs)

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Law of Succession ActCitation provisions (requisite citation to heirs and dependants)

Cases cited (1)

  • Elijah Makeri Nyangw'ra –vs– Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment disputes)

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, "Vincent Milimu Ashiono v Geoffrey Ashiono Luyundi [2019] KEELC 4374 (KLR)", Case Analysis (2019). ELC Case No. 356 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4374/eng@2019-02-27

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