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ELCDismissedCase No. 38 of 2017· [2020] KEELC 3263 (KLR)

Andrea Wanjala v Christopher Otinga Sikauti & another [2020] KEELC 3263 (KLR)

Environment and Land Court
12 March 2020
AOA. Omollo
1,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court dismissed a landowner's bid to correct a land register because he could not prove any fraud or mistake in how the land was registered.

What this practically means

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Executive summary

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The plaintiff sued the two defendants, sons of his late uncles Matayo Sheunda and Akwata Odinga, over land parcel South Teso/Amukura/182. He claimed the land was originally given to him in 1952 and that he later gifted 4 acres to Matayo and 3 acres to Akwata, with boundaries demarcated around 1970-1972, but that the Registrar erroneously registered the three as owners in equal shares. He sought an injunction restraining the defendants from exceeding those portions and an order compelling the Land Registrar Busia to rectify the register. The defendants denied the claim, pleaded that the matter was sub-judice in a succession cause, and relied on the green card showing each proprietor entitled to a 1/3 share; DW1 indicated no objection to sharing per the card. The court framed a single issue: whether there was an error in the register recording the proprietors in equal shares. Applying Section 143(1) of the repealed Registered Land Act and Section 80(1) of the Land Registration Act, the court held that rectification requires proof of fraud or mistake. The plaintiff produced no document detailing the terms of registration, called no evidence of the alleged pre-adjudication gift, and did not join the Land Registrar as a party. Section 26(1) of the Land Registration Act protected the registered titles, the plaintiff's own evidence being that he gave the land to his uncles. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the register recording the three proprietors as owners in equal shares contained an error liable to rectification

Holding

The plaintiff failed to prove any fraud or mistake in the registration; the register stands

Reasoning

The land was first registered on 7 December 1972 in the names of the plaintiff, Matayo Sheunda and Akwata Odinga in equal 1/3 shares. The plaintiff claimed he gifted portions to his uncles and the Registrar erred, but produced no document detailing the terms of registration, called no evidence of the pre-adjudication gift, and did not apportion any mistake or fraud on his co-owners. Evidence of PW2 did not assist as he was not present at the material times.

p. 2
02

Whether the defendants' registered titles can be impeached under Section 26(1) of the Land Registration Act

Holding

No; there is no evidence of illegal, unprocedural or fraudulent acquisition

Reasoning

Section 26(1) protects a registered proprietor's title as prima facie absolute and indefeasible unless acquired by fraud or misrepresentation to which the proprietor is party, or illegally, unprocedurally or through a corrupt scheme. The plaintiff's own evidence was that he gave the defendants' fathers the land, so there is no evidence of unprocedural acquisition.

p. 3
03

Whether the plaintiff proved possession of the remainder of the land so as to sustain the claim

Holding

He did not; the suit was not brought in a representative capacity yet others occupied the land

Reasoning

The plaintiff's own evidence showed parts of the land were occupied by his brothers and undisclosed purchasers. The suit was not brought in a representative capacity, and the plaintiff did not show that the areas occupied by these people fell within the defendants' 2/3 share. This further undermined his claim to the remainder.

p. 3

Legal principles established

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  • Rectification of the register is only available where registration is proved to have been obtained, made or omitted by fraud or mistake, and the burden lies on the party seeking rectification
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit to the defendants

Authorities

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Legislation

  • Registered Land Act Cap 300 (repealed)Section 143(1) and (2)
  • Registered Land Act Cap 300 (repealed)Section 28
  • Land Registration Act No. 3 of 2012Section 80(1)
  • Land Registration ActSection 26(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land (Environment and Land Court Act); court declined the jurisdictional objection based on pendency of Busia HC P&A No. 308 of 2014

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, "Andrea Wanjala v Christopher Otinga Sikauti & another [2020] KEELC 3263 (KLR)", Case Analysis (2020). Case No. 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3263/eng@2020-03-12

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