Luka Kibegwa Okara v Nyakeyo Ayega [2020] KEELC 2316 (KLR)

The Plaintiff produced a certificate of official search dated 2.10.2015 showing registration in his name and a title deed dated 26.10.2010. Under section 26 of the Land Registration Act, a certificate of title is prima facie evidence of absolute indefeasible ownership, subject only to encumbrances endorsed on the certificate. The Defendant did not impugn the title on grounds of fraud, misrepresentation, illegality or corruption under section 26(a) and (b).

The purported 1999 agreement was signed only by the Defendant, so there was no acceptance by the Plaintiff. Section 3(3) of the Law of Contract Act (in its post-2003 form) did not apply as the agreement predates the 2003 amendment, but under the pre-amendment law a suit could only be prevented by absence of writing where the purchaser had taken possession in part performance and paid. There was no cogent evidence of payment of the Kshs. 200,000 deposit; the advocate DW2 testified no money passed through his office. Offer, acceptance and consideration were therefore all lacking. Peter Mbiri Michuki was distinguished because its demand letter could corroborate payment, unlike here.

Applying the definition of trespass as any unjustifiable intrusion upon land in possession of another, with proof of ownership being prima facie proof of possession, the court found the Defendant's occupation unjustifiable given that he had no valid contract entitling him to remain. The Plaintiff discovered encroachment in 2009, filed suit in July 2010 and obtained a temporary injunction.

Specific performance is discretionary and requires a valid enforceable contract; none existed here. The court declined to rest on limitation alone, though it observed the counterclaim was filed almost six years after the suit. Without proof of payment of Kshs. 200,000, no unjust enrichment arose and the alternative refund claim also failed.