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ELCAllowedKitale HCCC 165 of 2006 (formerly HCCC 120 of 2009 references)· [2020] KEELC 2209 (KLR)

Alfred Juma Makanda v Alfred Ochorokod Omusolo [2020] KEELC 2209 (KLR)

Environment and Land Court
21 May 2020
MNMwangi Njoroge
2,954 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 ordered a land occupier to vacate within 90 days after he failed to prove his fraud claim against the registered owner.

What this practically means

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Executive summary

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The plaintiff sued in 2006 seeking eviction of the defendant from Trans Nzoia/Botwo/384 (0.5 Ha), claiming he was the registered proprietor, having been issued a title deed on 2/3/1999 by the Kitale District Land Registry. The defendant denied the plaintiff's membership in Botwo Farm Company Ltd and alleged the title was fraudulently obtained while Kitale HCCC 66 of 1997 was pending. At hearing, the plaintiff testified he became a company member in 1982, purchased 1.5 acres, and produced receipts including one dated 10/7/1982 signed by the defendant as chairman. The defendant, a former chairman of the company, admitted long acquaintance with the plaintiff but denied issuing the receipt, though he never reported forgery to police. He relied on a tribunal award in the plaintiff's favour that was quashed by certiorari in Kitale High Court Misc. Civil Appl. No. 14 of 1997 (formerly Eldoret Misc 322 of 1996) on grounds of irregular panel gazettement and quorum. The court framed three issues: registration, fraud, and appropriate orders. It found registration proved without demur, held that the receipt and the defendant's conduct established a sale for consideration, and found the fraud allegation unproved, noting the Settlement Fund Trustees accepted payments from the plaintiff and processed his title. The prior certiorari order was held to rest on technicalities and could not defeat substantive justice under Article 159(2)(d). Judgment was entered for the plaintiff: the defendant to vacate within 90 days, failing which forcible eviction would follow, with each party bearing their own costs.

Key legal issues

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01

Whether the plaintiff proved registration as proprietor of the suit land

Holding

Yes - the plaintiff produced a copy of title without demur from the defendant and established registration on a balance of probabilities.

Reasoning

The defendant, by a bare denial, invited the plaintiff to prove registration. The plaintiff produced a copy of title to Trans Nzoia/Botwo/384 and the defendant did not challenge it. The court held that on the evidence produced the plaintiff established on a balance of probabilities that the suit land was registered in his name.

p. 2
02

Whether the plaintiff fraudulently obtained title

Holding

No - the defendant failed to prove fraud on a balance of probabilities.

Reasoning

The court found that the defendant issued the plaintiff receipt PExh 4 and received consideration for the land. The plaintiff's name appeared on the defendant's letter of allotment, the Settlement Fund Trustees accepted payments from the plaintiff and processed title in his name, and no refund was evidenced. The defendant made no forgery report despite denying the receipt. Fraud required proof and joinder of the SFT would have been needed to pursue that allegation.

p. 4
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Effect of the prior certiorari order quashing the tribunal award

Holding

The certiorari order does not defeat the plaintiff's claim, as it rested largely on technical grounds and this court must determine the dispute on its substance.

Reasoning

The quashing of the Kaplamai Land Disputes Tribunal award in Kitale HCMisc Appl 14 of 1997 was based mainly on irregular panel composition and lack of record of service - matters the court characterised as technical and common in the tribunal era. Article 159(2)(d) required the court to decide the dispute on substance rather than technicality, and the defendant could not rely on the certiorari order alone.

p. 3

Legal principles established

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  • He who asserts a fact must prove it; the burden of proving fraud lies on the party alleging it
  • Substantive justice shall not be sacrificed on the altar of technicalities (Article 159(2)(d))

Court orders

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  1. 1.The plaintiff's claim succeeds
  2. 2.The defendant shall remove himself from LR Number Trans Nzoia/Botwo/384 within 90 days of the order and in default shall be forcibly evicted therefrom and the plaintiff shall assume possession
  3. 3.Each party shall bear their own costs of this suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Evidence ActSection 107(1)
  • Trespass ActSection 5(1)(a)
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to and possession of land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alfred Juma Makanda v Alfred Ochorokod Omusolo [2020] KEELC 2209 (KLR)", Case Analysis (2020). Kitale HCCC 165 of 2006 (formerly HCCC 120 of 2009 references). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2209/eng@2020-05-21

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