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ELCPartially AllowedELC Case No. 85 of 2019· [2020] KEELC 138 (KLR)

Shiroya Alfred GML v Eliakim Masaka Sheunda [2020] KEELC 138 (KLR)

Environment and Land Court
9 December 2020
1,359 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 ruled that a registered landowner's title overrides tribunal and court orders made against land when the owner was never a party to those cases.

What this practically means

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Executive summary

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The plaintiff, the registered proprietor of land parcel No. N/Wanga/Namamali/985 measuring about 5 acres, sued the defendant seeking declarations that orders made in Kakamega SPMCC No. 827 of 1996 and Mumias Division Tribunal Case No. 2 of 1997 are null and void in so far as they affect his title, a declaration that the defendant is not entitled to enter, remain or use the land, a permanent injunction, alternatively eviction, and damages. The plaintiff alleged the defendant wrongfully entered the land in May 1998, erected a hut and uprooted sugar cane. The defendant relied on the tribunal and court orders in the earlier proceedings between himself and his brother Moses Ndokhome Shihunda, contending the land was family land fraudulently sold while he was under age. The court, applying sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra decision, perused the green card showing registration history from 1972 to the plaintiff in 1995 and found the plaintiff was an innocent purchaser for value whose title was not acquired illegally, unprocedurally or through a corrupt scheme. It noted the plaintiff was never enjoined in the earlier proceedings. Judgment was entered partially for the plaintiff: the two declarations sought were granted, the defendant was ordered to vacate within 60 days failing which eviction would issue, but damages were refused as not established. There were no orders as to costs.

Key legal issues

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01

Indefeasibility of the plaintiff's registered title

Holding

The plaintiff is the absolute and indefeasible owner of parcel No. N/Wanga/Namamali/985; his title was not acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, perused the green card showing an unbroken chain of registrations from 1972 to the plaintiff in 1995, and found the plaintiff an innocent purchaser for value. The defendant's claim rested on tribunal and court orders in proceedings to which the plaintiff was never a party, and which post-dated the plaintiff's registration.

p. 2
02

Nullity of orders in proceedings in which the plaintiff was not a party

Holding

Orders in Kakamega SPMCC No. 827 of 1996 and the Mumias Division Tribunal case are null and void in so far as they purport to affect the plaintiff's rights over the suit land

Reasoning

The plaintiff was never enjoined in the earlier tribunal and court proceedings. When those matters were decided in 1996 and 1997 the land had already been registered in the plaintiff's name, so the defendant could not derive rights over it from orders made without the proprietor's participation. The court therefore granted the declaratory relief sought.

p. 2
03

Claim for damages

Holding

Damages refused as not established

Reasoning

Although the plaintiff alleged wrongful entry, erection of a hut and uprooting of sugar cane from May 1998, no evidence quantifying or establishing any loss was assessed. The court declined to award damages and granted instead the eviction relief in the alternative.

p. 2

Legal principles established

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

Court orders

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  1. 1.A declaration that all orders in Kakamega SPMCC No. 827 of 1996 and Mumias Division Tribunal Case No. 2 of 1997 are null and void in so far as they purport to affect the plaintiff's rights over title No. N/Wanga/Namamali/985
  2. 2.A declaration that the defendant is not entitled to enter, remain or use title No. N/Wanga/Namamali/985 or any portion thereof
  3. 3.The defendant to vacate the suit title within 60 days from the date of judgment, in default an eviction order to issue forthwith
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (1)

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

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, "Shiroya Alfred GML v Eliakim Masaka Sheunda [2020] KEELC 138 (KLR)", Case Analysis (2020). ELC Case No. 85 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/138/eng@2020-12-09

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