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ELCDismissedELCA No 8 of 2018· [2020] KEELC 2109 (KLR)

Mary Gathoni Gathuo &another; v David Kariuki Mathenge [2020] KEELC 2109 (KLR)

Environment and Land Court
8 June 2020
6,219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court confirmed that a registered landowner's Kenyan title stands firm against buyers who purchased from him before he was officially registered.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nyahururu against the judgment of Hon. T Matheka, Principal Magistrate, in Nyahururu CMCC No 134 of 2003, in which the Respondent, David Kariuki Mathenge, obtained a declaration, eviction orders and costs against the Appellants over land parcel Nyandarua/Oljoro-Orok Salient/1935, and the Appellants' counterclaims were dismissed. The Appellants appealed on grounds including limitation, validity of the sale agreements, estoppel, constructive trust, Land Control Board consent and root of title. M.C. Oundo J, sitting as a first appellate court, identified five issues: whether the Respondent had title to pass to the 2nd Appellant, whether the 1984 sale agreement was valid, whether each Appellant was the rightful owner of the parcels claimed, and whether the trial Magistrate misapprehended or misapplied the law. The Court found that although the Respondent sold 5 acres to the 2nd Appellant by agreement of 15th August 1984 and received Ksh 30,949, the land was at that time registered to the Settlement Fund Trustee as Government land, so the Respondent had no proprietary interest to pass and the agreement, and the derivative agreement with the 1st Appellant, were void ab initio. Paradoxically, this did not assist the Appellants: the Respondent obtained registered title on 28th April 1997, his title under Section 26(1) of the Land Registration Act, 2012 was indefeasible absent fraud, and the 1st Appellant could not claim by adverse possession since time ran only from registration, the suit having been filed in 2003 within twelve years, and public land being excluded under Section 41 of the Limitation of Actions Act. The trial Magistrate was held to have neither misapprehended nor misapplied the law. The appeal was dismissed with no costs.

Key legal issues

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01

Whether the Respondent had title to pass to the 2nd Appellant under the 1984 sale agreement

Holding

No. The Respondent was not the registered owner at the time, the land being registered to the Settlement Fund Trustee as Government land; the agreement was void ab initio, as was the subsequent agreement between the 2nd Appellant and the 1st Appellant.

Reasoning

The title deed was issued on 28th April 1997, about 13 years after the 1984 agreement. Before registration the land belonged to the Settlement Fund Trustee as Government land, so the Respondent had no proprietary interest to pass. Any agreement alienating the suit land before he attained title was void, and the 2nd Appellant therefore passed no valid title to the 1st Appellant.

p. 7
02

Whether the Respondent's registered title could be challenged

Holding

No. Under Section 26(1) of the Land Registration Act, 2012 his title was prima facie and indefeasible, with no fraud or misrepresentation proved.

Reasoning

The parcels were registered under the Registered Land Act (Cap 300), now repealed and replaced by the Land Registration Act, 2012. Section 26(1) makes a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal or unprocedural acquisition. No such allegations or evidence were levelled against the Respondent.

p. 7
03

Whether the 1st Appellant acquired the 2 acres by adverse possession/limitation

Holding

No. Time ran only from 28th April 1997 when the Respondent was registered; he sued in 2003 within 12 years, and Section 41 excludes public land from the Limitation of Actions Act.

Reasoning

Although the 1st Appellant indirectly invoked adverse possession by asserting occupation since 1989, the suit land was public land held by the Settlement Fund Trustees until registration of the Respondent in 1997. Section 41 of the Limitation of Actions Act excludes Government land, so no title by adverse possession could be acquired before registration; the Respondent filed suit six years after registration, well within 12 years.

p. 8
04

Whether the trial Magistrate misapprehended or misapplied the law

Holding

No. Her findings were upheld in full and the appeal dismissed.

Reasoning

Having reconsidered the evidence as a first appellate court, the Judge found no basis to disturb the trial court's findings: the Respondent was the registered proprietor, the 1st Appellant was a trespasser, and the trial Magistrate's judgment was neither based on no evidence nor on a misapprehension of the evidence or a wrong principle.

p. 8

Legal principles established

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  • A seller without proprietary interest or title at the time of the sale passes no valid title, and any agreement to alienate the land before attaining title is void ab initio
  • A first appellate court must reconsider and assess the evidence and reach its own conclusions, but will not interfere with findings of fact unless based on no evidence, misapprehension of evidence, or a wrong principle
  • A title of a registered proprietor under Section 26(1) of the Land Registration Act, 2012 is prima facie and indefeasible absent fraud or unprocedural acquisition
  • Limitation/adverse possession does not run against land held by the Settlement Fund Trustee while it is public land, and time begins to run only upon registration of the adverse claimant's predecessor in title

Court orders

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  1. 1.The Appeal is dismissed with no costs
  2. 2.The finding of the trial Court upholding the Respondent's proprietorship and ordering eviction of the 1st Appellant is upheld

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSections 37 and 38
  • Limitation of Actions Act (Cap 22)Section 41
  • Land Registration Act, 2012Section 26(1)
  • Registered Land Act (Cap 300)Sections 27 and 28 (repealed Act)
  • Land Control ActSection 8(1)
  • Evidence ActSections 120 to 123, Part II

Cases cited (11)

  • James Maina Kinya vs Gerald Kwendaka
    [2018] eKLR
  • M'ikiara M'rinkanya & Another vs Gilbert Kabeere M'mbijiwe
    [2007] eKLR
  • Doge vs Kenya Canners Ltd
    [1989] eKLR
  • Muti vs Kenya Finance Corporation & Another
    [2004] 2EA 182
  • Willy Kimutai Kitiit vs Michael Kibet
    [2018] eKLR
  • Joseph Mathenge Kamutu vs Joseph Wainaina Karanja & Another
    [2015] eKLR
  • Hurbet L. Martin & 2 Others vs Margaret J Kamar & 5 Others
    [2016] eKLR
  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Adnam v Earl of Sandwich
    (1877) 2QB 485
On appeal from
Chief Magistrate's Court at Nyahururu
CMCC No 134 of 2003
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Chief Magistrate's Court at Nyahururu (Nyahururu CMCC No 134 of 2003)

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, "Mary Gathoni Gathuo &another; v David Kariuki Mathenge [2020] KEELC 2109 (KLR)", Case Analysis (2020). ELCA No 8 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2109/eng@2020-06-08

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