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ELCPartially AllowedBungoma Environment and Land Court Case (not stated in excerpt; formerly plaint dated 26th August 2008)· [2020] KEELC 2344 (KLR)

Gabriel Wamalwa Barasa v Charles Barasa Lusopio & another [2020] KEELC 2344 (KLR)

Environment and Land Court
27 May 2020
BOBoaz N. Olao
5,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court restored a man's inherited land taken by his brother through fraudulent registration, but refused to cancel titles held by a genuine buyer.

What this practically means

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Executive summary

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Two brothers litigated over the estate of their father, the registered proprietor of WEST BUKUSU/SOUTH MATEKA/1844 until his death in 1987. The 1st defendant obtained letters of administration in Bungoma High Court Succession Cause No 99 of 1997, which file mysteriously disappeared while an application to revoke the grant was pending. He sub-divided the original parcel into 2848, 2849 and 2850, all registered in his own name, and later sub-divided 2850 into 2855 and 2856, transferred to his sisters, who sold both to the 2nd defendant in 1998 for Kshs 280,000. The plaintiff, who occupied parcels 2855 and 2856, sued for cancellation of all four titles, alleging fraud and disinheritance. The defendants counter-claimed for his eviction and removal of cautions. The court held it had jurisdiction under Article 162(2)(b) of the Constitution and Section 13(2)(e) of the ELC Act to determine title disputes arising from an estate notwithstanding pending succession proceedings. On the evidence, the court found the 1st defendant fraudulently registered parcel 2849 — the plaintiff's rightful 7-acre share — in his own name while posing as the plaintiff's trustee, and then disposed of it to third parties. The court cancelled that registration and ordered its transfer to the plaintiff, with vacant possession within six months. However, it declined to cancel the titles to parcels 2848, 2855 and 2856, holding they were properly held, and granted the Counter-Claim: the plaintiff must remove his cautions and vacate parcels 2855 and 2856, with evictions to comply with Section 152 of the Land Act. Each party was ordered to bear their own costs, the parties being siblings who had each partly succeeded. Judgment was delivered electronically on 27th May 2020 due to COVID-19 court restrictions.

Key legal issues

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01

Jurisdiction of the ELC over estate-related land disputes

Holding

The ELC has jurisdiction to determine ownership disputes arising from the distribution of a deceased's estate even where a succession cause exists, though it cannot question the grant or its confirmation

Reasoning

The court held that while it cannot review what transpired in the Succession Court, Section 13(2)(e) of the ELC Act and Article 162(2)(b) of the Constitution vest exclusive jurisdiction over title to land in the ELC. Section 82 of the Law of Succession Act allows the Probate Court to set aside a share to abide the ELC's determination, especially where non-beneficiary third parties are involved.

p. 4
02

Fraudulent registration of parcel 2849

Holding

The registration of parcel 2849 in the 1st defendant's name was fraudulent and intended to disinherit the plaintiff, warranting cancellation

Reasoning

The 1st defendant's own statement confirmed parcel 2849 was the plaintiff's 7-acre share, yet he registered it in his own name while describing himself as the plaintiff's trustee in a 2002 sale agreement. The acreage of the parcels (11.6 acres for 2848, 7.41 acres for 2849) and the 1st defendant's admission of selling 6 acres showed he sold the plaintiff's share, an act of fraudulent alienation.

p. 6
03

Validity of the 2nd defendant's title to parcels 2855 and 2856

Holding

The 2nd defendant's titles were validly acquired from the sisters who were entitled to their shares; no basis for cancellation

Reasoning

Parcels 2855 and 2856 arose from parcel 2850, the rightful share of WILMINA NAFULA OCHUNE and MARY NASWA TOKOI, who sold them to the 2nd defendant for Kshs 280,000. They were entitled to sell. The plaintiff's occupation was a consequence of the 1st defendant's fraud but did not impeach the 2nd defendant's title.

p. 6
04

Defendants' Counter-Claim for eviction and removal of cautions

Holding

The Counter-Claim was merited; the plaintiff must vacate parcels 2855 and 2856 and remove cautions on parcels 2848, 2855 and 2856

Reasoning

Although the plaintiff occupied parcels 2855 and 2856, his rightful share was parcel 2849, which the court restored to him. Having secured his rightful share, he cannot retain occupation of the 2nd defendant's parcels, and the cautions placed on parcels 2848, 2855 and 2856 must be removed, with evictions conducted under Section 152 of the Land Act.

p. 6

Legal principles established

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  • A registered proprietor's title is protected by Section 24 of the Land Registration Act but may be challenged on grounds of fraud, misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme under Section 26(1)
  • The Environment and Land Court has jurisdiction to determine ownership disputes over land forming part of a deceased's estate, notwithstanding pending probate proceedings, particularly where third parties are involved
  • The burden of proving a particular fact lies on the party alleging it under Section 109 of the Evidence Act

Court orders

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  1. 1.Cancellation of the 1st defendant's registration as proprietor of land parcel WEST BUKUSU/SOUTH MATEKA/2849
  2. 2.The 1st defendant to execute documents within 30 days to register parcel 2849 in the plaintiff's name, with the Deputy Registrar at liberty to execute in default
  3. 3.The 1st defendant to give vacant possession of parcel 2849 to the plaintiff within 6 months or be evicted, and thereafter be restrained from interfering with the plaintiff's occupation
  4. 4.Upon compliance, the plaintiff to remove cautions on parcels 2848, 2855 and 2856 within 30 days and give vacant possession of parcels 2855 and 2856 to the 2nd defendant or be evicted
  5. 5.In default, the cautions on parcels 2848, 2855 and 2856 to stand as withdrawn under Section 73(1) of the Land Registration Act
  6. 6.Any evictions to be carried out in compliance with Section 152 of the Land Act
  7. 7.Each party to meet their own costs

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 73(1)
  • Environment and Land Court ActSection 13(2)(e)
  • Law of Succession ActSection 82
  • Evidence ActSection 109
  • Land ActSection 152
  • Constitution of KenyaArticle 162(2)(b)
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(2)(e) of 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, "Gabriel Wamalwa Barasa v Charles Barasa Lusopio & another [2020] KEELC 2344 (KLR)", Case Analysis (2020). Bungoma Environment and Land Court Case (not stated in excerpt; formerly plaint dated 26th August 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2344/eng@2020-05-27

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