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ELCPartially AllowedELC Case No. 4 of 2013· [2019] KEELC 4375 (KLR)

Khadija Khatioli Okutoyi v John Mwanza Kenyatta & 2 others [2019] KEELC 4375 (KLR)

Environment and Land Court
28 February 2019
1,391 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega cancelled six land titles that physically sat on someone else's registered parcel and ordered the occupants to leave within twelve months.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Land Parcel No. South Wanga/Ekero/977 (title deed issued 2009), sued three defendants for eviction, alleging forcible entry, erection of permanent structures and dealings with parts of her land. The 1st defendant claimed ownership of parcel 2581; the 2nd defendant claimed parcels 1234 (purchased from Shaban Nyongesa Nanjira); the 3rd defendant claimed parcel 2582 and filed a counterclaim seeking eviction of the plaintiff, a permanent injunction and mesne profits from December 2012 at Ksh. 50,000 per year. A court surveyor's report (PEx3) found parcel 977 intact with no subdivisions generated from it, yet six parcels (1234, 1235, 1236, 2581, 1282, 1281) physically occupied it. DW4, the original vendor, admitted selling the land to the plaintiff's husband and selling the retained parcel to other buyers. Applying sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision, the court held the six titles were bad and ordered them cancelled and nullified forthwith. The defendants and all claiming under them were given twelve months to vacate parcel 977, failing which eviction would issue. The 3rd defendant's counterclaim was dismissed. As the parties are neighbours, there was no order as to costs. The court lamented that the Land Registrar was not enjoined to explain how one parcel could bear multiple titles.

Key legal issues

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01

Validity of titles carved over land comprised in another registered title

Holding

All six titles found physically within Land Parcel No. South Wanga/Ekero/977 are bad titles and were ordered cancelled/nullified.

Reasoning

The court relied on the surveyor's report (PEx3) showing that parcel 977 was intact with no subdivisions generated from it, yet the six parcels occupied it on the ground. Applying sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra case, it held titles may be impugned where acquired illegally, unprocedurally or through a corrupt scheme, and found the subdivisions could not lawfully issue from the intact parcel 977.

p. 2
02

Indefeasibility of the plaintiff's title versus the seller's claim of a smaller sale

Holding

The plaintiff holds good title; the vendor cannot resile from what the title states after selling the same parcel twice.

Reasoning

DW4 admitted selling one acre to the plaintiff's husband (parcel 977) and parcel 976 to others, but claimed he did not sell one hectare. The court found he appears to have sold the same parcel twice, and held it was too late for the seller to allege the title covered more land than he intended to sell. The plaintiff, as the initial buyer holding title, thus prevailed over the later purchasers.

p. 2
03

Whether the plaintiff proved her eviction claim on a balance of probabilities

Holding

The plaintiff proved her case and obtained eviction orders against the defendants and persons claiming under them, with 12 months to vacate.

Reasoning

The plaintiff's title deed (PEx1) issued in 2009 and the surveyor's report (PEx3) established her registration and that the defendants' parcels physically sat on her land. Given the permanent structures erected, the court granted a 12-month grace period to vacate before eviction issues. The court also regretted that the Land Registrar was not enjoined to explain the double titling.

p. 2

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 grounds of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
  • Titles which, though regular on the register, physically occupy another proprietor's parcel without lawful derivation are bad titles liable to nullification.

Court orders

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  1. 1.The titles to Land Parcels South Wanga/Ekero/1234, 1235, 1236, 2581, 1282 and 1281, being bad titles, are to be cancelled and/or nullified forthwith
  2. 2.The defendants and all persons claiming interest in Land Parcel No. South Wanga/Ekero/977 are given 12 months to vacate the suit land, in default eviction order to issue forthwith
  3. 3.The 3rd defendant's counterclaim is dismissed
  4. 4.No order as to costs, as the parties are neighbours

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
Original jurisdiction of the Environment and Land Court over disputes relating to ownership of land

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, "Khadija Khatioli Okutoyi v John Mwanza Kenyatta & 2 others [2019] KEELC 4375 (KLR)", Case Analysis (2019). ELC Case No. 4 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4375/eng@2019-02-28

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