Mode of Proceeding Multi Track Bildad Simiyu Khakina & 2 others v Henry Kerre Wakhungu & 2 others [2020] KEELC 2380 (KLR)
The bottom line
#A Kenyan court cancelled neither side's land titles but ordered official registers corrected to match the actual land size, after a family dispute over acreage.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 2nd defendants fraudulently obtained title to parcel 2395 and the resultant sub-divisions
No fraud was proved; their title reflects the 2 acres (0.80 Ha) purchased, though the sub-divisions totalled 1.02 Ha, an excess of 0.22 Ha
Fraud must be distinctly proved to a standard above balance of probabilities. The court found the defendants purchased 2 acres from Margaret Crutcher, who had bought from Paul Masinde NATO. The sub-divisions totalled 1.02 Ha against an entitlement of 0.80 Ha, an encroachment of 0.22 Ha explained as mistake rather than fraud, warranting rectification under Section 80 of the Land Registration Act.
Whether the 1st and 2nd plaintiffs fraudulently obtained title to parcel 2394
No; they did purchase land, but the title's stated 0.72 Ha was mistaken and should be 0.60 Ha, later rectified to 0.40 Ha on the ground
Written agreements of 13th June 1992 and 16th July 1992 proved the 2nd plaintiff purchased 1.5 acres from Paul Masinde NATO. Witnesses' oral attempts to contradict these written agreements were inadmissible. Applying 1 Ha = 2.5 acres, 1.5 acres equals 0.60 Ha, not the 0.72 Ha on the title; the discrepancy arose from mistake, not fraud.
Entitlement on the ground given actual acreage of 1.10 Ha against registered 1.52 Ha
Registers to be rectified: sub-divisions 5868–5871 to 0.70 Ha total and parcel 2394 to 0.40 Ha, reflecting the ground position and purchase prices
The County Surveyor's report found the actual ground acreage is 1.10 Ha while registered acreage is 1.52 Ha, and that the defendants occupy the whole ground area. The court, adopting the Surveyor's recommendation, directed rectification of the registers apportioning the actual 1.10 Ha between the parties according to their entitlements and what each paid.
Whether the suit offended Section 18 of the Land Registration Act as a boundary dispute
No; the preliminary objection foreshadowed in the defence was never raised and the suit concerns fraudulent creation of titles, not boundaries
No preliminary objection was taken before or during trial. It would in any event fail because the plaintiffs had abandoned the boundary-determination prayer on 21st June 2018, and the pleadings showed the suit concerned fraudulent creation of titles rather than a boundary dispute within Section 18 of the Land Registration Act.
Legal principles established
#- Allegations of fraud must be distinctly proved to a standard higher than a mere balance of probabilities but lower than beyond reasonable doubt; general allegations are insufficient
- Oral evidence is not admissible to contradict or vary the terms of a written contract
- A document in Kiswahili, which the Court can understand, may be admitted in evidence notwithstanding Section 23(1) of the Environment and Land Court Act, guided by Article 7(2) and Article 159(2)(d) of the Constitution
- Under Section 80 of the Land Registration Act, the court may order rectification of a registration obtained or omitted by fraud or mistake
Court orders
#- 1.The register to land parcels NO EAST BUKUSU/NORTH KANDUYI 5868, 5869, 5870 and 5871 is rectified to reflect the total acreage as 0.70 Ha
- 2.The register to land parcel NO EAST BUKUSU/NORTH KANDUYI/2394 is rectified to reflect the total acreage as 0.40 Ha
- 3.The Land Registrar and County Surveyor Bungoma are directed to rectify the registers and amend the registration of the parcels as above and the same to be reflected on the ground
- 4.All the parties, where necessary, shall execute any relevant documents to facilitate that process and in default, the Deputy Registrar shall be at liberty to do so on behalf of any of the parties upon application
- 5.Each party to meet their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; rectification powers under Section 80 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mode of Proceeding Multi Track Bildad Simiyu Khakina & 2 others v Henry Kerre Wakhungu & 2 others [2020] KEELC 2380 (KLR)", Case Analysis (2020). Bungoma ELC Case (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2380/eng@2020-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.