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ELCPartially AllowedELC Case No. 741 of 2015 (Formerly Civil Case No. 162 of 2011)· [2019] KEELC 4488 (KLR)

Risper Apiyo Andere, James Omondi Wandere, Julius Onyuro Norman Wandere & Francis Wanyigo Wandere v Joshua Ayoro Obonyo & James Robert Ouko Onyango [2019] KEELC 4488 (KLR)

Environment and Land Court
27 February 2019
2,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kisumu court cancelled land titles because the owners couldn't prove how they legally acquired the land, and gave it back to the family.

What this practically means

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Executive summary

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The four Plaintiffs sued over land parcel Kisumu/Kasule/1436, subdivided into parcels 2081 to 2099, claiming it belonged to their father/husband Norman Wandere, whose family interests were overlooked during the 1978 adjudication while the family was in Tanzania, and that the 1st Defendant fraudulently had himself registered. They sought cancellation of the title held by the 2nd Defendant and registration in their names. The 1st Defendant denied the claim and filed a counterclaim; the 2nd Defendant, served by advertisement, did not enter appearance. The court found that the same dispute had been determined by the Kisumu East District Land Disputes Tribunal, whose award in the Plaintiffs' favour was adopted as a decree in Kisumu CMCC Land Case No. 35 of 2011 and never appealed against. Although the Plaintiffs did not particularize the alleged fraud as required by Virjay Morjaria, the court held, applying Munyu Maina and Article 159(2)(d) of the Constitution, that the Defendants' titles were successfully challenged under Section 26(1) of the Land Registration Act because neither proprietor proved a legal and formal acquisition: the 1st Defendant admitted registration occurred in his absence during adjudication, and produced no sale agreement or consent for the transfer to the 2nd Defendant, who offered no defence. The court noted, however, that the Plaintiffs proved registration only for parcels 2081 to 2096 and 2099, offering no evidence on 2097 and 2098, and had not prayed for parcels 3000 to 3006. The court cancelled the 2nd Defendant's registration of parcels 2081 to 2096 and 2099, ordered the Plaintiffs registered as proprietors, struck out the 1st Defendant's counterclaim as unpaid and unserved, and awarded the Plaintiffs costs against the Defendants.

Key legal issues

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01

Whether the Plaintiffs' fraud pleading without particulars defeated their claim

Holding

Though fraud was not particularized, the Defendants' titles were successfully challenged under Section 26(1) of the Land Registration Act because the Defendants led no evidence of legal and formal acquisition

Reasoning

The court acknowledged the Virjay Morjaria rule that fraud must be distinctly pleaded and proved, but held that the Plaintiffs' real case was that their family's interests were overlooked during the 1978 adjudication while they were in Tanzania. The registered proprietors offered no evidence of how the titles were lawfully acquired: the 1st Defendant admitted registration occurred in his absence, and produced no sale agreement, transfer documents or Land Control Board consent for the transfer to the 2nd Defendant. Applying Article 159(2)(d), technicalities did not defeat the claim.

p. 3
02

Whether the Defendants proved their root of title

Holding

No; the burden lay on the registered proprietors once their root of title was under challenge, and neither discharged it

Reasoning

Relying on Munyu Maina v Hiram Gathiha Maina, the court held that dangling the title instrument is insufficient where the root of title is challenged. The green card showed first registration of the 1st Defendant on 14 July 1989 during adjudication, which he conceded happened in his absence while in Tanzania, without any known basis of entitlement. The 2nd Defendant entered no defence. The Plaintiffs' occupation and the Tribunal award, never appealed against, supported their claim.

p. 3
03

Whether the 1st Defendant's counterclaim was properly before the court

Holding

It was not; it was struck out

Reasoning

The receipt under which the defence and documents were filed showed no payment of the counterclaim fee, and there was no evidence the counterclaim was served on the 2nd Defendant, against whom it was partly directed. It was therefore not properly on record.

p. 3

Legal principles established

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  • Fraud must be specifically pleaded with particulars on the face of the pleading and must be distinctly alleged and distinctly proved; it cannot be left to be inferred from the facts
  • Where a registered proprietor's root of title is under challenge, the proprietor must go beyond the title instrument and prove the legality of the acquisition
  • A title under Section 26(1) of the Land Registration Act can be challenged where the proprietor has not shown that the acquisition was legal and formal, and courts should not be deterred by pleading technicalities given Article 159(2)(d) of the Constitution

Court orders

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  1. 1.The registration of the 2nd Defendant as the proprietor of Kisumu/Kasule/2081 to 2096 and 2099 is cancelled
  2. 2.The Plaintiffs be registered as the proprietors of Land Parcels Kisumu/Kasule/2081 to 2096 and 2099 upon cancellation of the name of the 2nd Defendant
  3. 3.The Defendants do pay the Plaintiffs the costs of the suit
  4. 4.The 1st Defendant's counterclaim is struck out as it was not properly before the court and there is no evidence it was served on the 2nd Defendant

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)(d)
  • Land Registration Act No. 3 of 2012Section 26(1)

Cases cited (2)

  • Virjay Morjaria vs Nansingh Darbar & Another
    [2000] eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    C.A No. 239 of 2009
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land; registration sought pursuant to Section 26(1) of the Land Registration Act following a Kisumu East District Land Disputes Tribunal award adopted as Kisumu CMCC Land Case No. 35 of 2011

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, "Risper Apiyo Andere, James Omondi Wandere, Julius Onyuro Norman Wandere & Francis Wanyigo Wandere v Joshua Ayoro Obonyo & James Robert Ouko Onyango [2019] KEELC 4488 (KLR)", Case Analysis (2019). ELC Case No. 741 of 2015 (Formerly Civil Case No. 162 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4488/eng@2019-02-27

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