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ELCAllowedMachakos ELC Appeal (Judgment delivered 29 October 2021, arising from Machakos ELC Case No 29 of 2019 / Chief Magistrates Land Case No 31 of 2019)· [2021] KEELC 1284 (KLR)

Alex Kyalo Mutua v King’oo Ngulasa [2021] KEELC 1284 (KLR)

Environment and Land Court
29 October 2021
8,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed a land buyer's title, ruling that a challenged owner must prove lawful acquisition and that long occupation alone doesn't defeat ownership.

What this practically means

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Executive summary

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This is a first appeal from the Chief Magistrate's Court at Machakos, which had on 13th May 2020 dismissed the Plaintiff's suit claiming ownership of Machakos Town Block 3/695, a permanent injunction, eviction and demolition. The Appellant had purchased the property from Katelembo Athiani Muputi Farming & Ranching Co-operative Society in 1998 and obtained a title in 2016; the Respondent claimed ancestral ownership and occupation since birth, and pointed to ELC Petition No 76 of 2017. Angote J restated the first appellate court's duty to re-evaluate the evidence. Holding that the Respondent's Defence had challenged the Appellant's root of title as dubious and suspect, the court applied Munyu Maina and Chemei Investments: a registered proprietor whose title is challenged must go beyond the instrument and prove lawful acquisition. The court found the Appellant discharged that burden through the 1998 sale agreement compliant with section 3(3) of the Law of Contract Act, the Society's 2015 no-objection letter, and the signed transfer. Applying Theresa Constabir and section 6(3) of the Land Control Act, the court held Land Control Board consent unnecessary because the Government transferred the land directly to the Appellant. The Respondent failed to prove customary trust under the M'inanga Kiebia criteria or adverse possession, the Society never having been sued; the sub judice point failed because the Appellant was not a party to Petition No 76 of 2017. The appeal was allowed, the trial judgment set aside and substituted with a declaration of ownership, a permanent injunction, eviction and demolition orders, and costs of both the appeal and the suit awarded to the Appellant.

Key legal issues

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01

Burden on a registered proprietor whose title is challenged

Holding

Because the Respondent's Defence asserted the property was ancestral land and the Appellant's title dubious, suspect and untenable, the Appellant bore the burden of proving he was an innocent purchaser for value with a clear chain of root of title.

Reasoning

The court adopted Munyu Maina v Hiram Gathiha Maina and Chemei Investments: indefeasibility under sections 25 and 26 of the Land Registration Act does not shield a title procured illegally, unprocedurally or through a corrupt scheme. Where the root of title is attacked, the proprietor must go beyond the instrument and demonstrate a lawful, formal acquisition free of encumbrances. The Appellant discharged that burden; the Respondent proved no fraud, misrepresentation or corrupt scheme.

p. 7
02

Validity of the Appellant's acquisition from the Society

Holding

The Appellant proved lawful purchase: a written agreement of 22nd September 1998 signed by the Society's officials, the Society's no-objection letter of 7th October 2015, and a signed transfer leading to the issue of the title deed.

Reasoning

The 1998 letter, signed by three officials of the Society and the Appellant and witnessed by two witnesses, satisfied section 3(3) of the Law of Contract Act. The Society's 2015 letter confirmed the sale to the County Land Registrar. The Registrar issued the title on the basis of the agreement, the letter and the duly signed transfer, so the acquisition was lawful and the title valid.

p. 9
03

Land Control Board consent

Holding

The consent of the Land Control Board was not required because the suit property had been surrendered to the Government and was transferred by the Government directly to the Appellant.

Reasoning

Section 6(3) of the Land Control Act exempts transactions to which the Government, the Settlement Fund Trustees or a county council are parties. Following Theresa Constabir v Jeremiah M. Maroro, the court held that land control boards police freehold agricultural land, not Government land. The Society surrendered the property to the Government before the Government transferred it to the Appellant, so no Board consent was needed.

p. 8
04

Ancestral/customary trust and adverse possession claims

Holding

The Respondent failed to prove a customary trust overriding the title and could not rely on continuous occupation, since a claim of adverse possession could only lie against the Society, the registered owner since 1972, which he did not sue.

Reasoning

Applying the elements set out by the Supreme Court in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the Respondent adduced no evidence that the land was family, clan or group land before the 1962 registration, nor of a qualifying relationship with the registered proprietor. The 12-year limitation period ran against the Society, not the Appellant registered in 2015; the Society, a necessary party to any adverse possession claim, was never sued.

p. 8
05

Sub judice (Petition No 76 of 2017)

Holding

It was erroneous for the magistrate to require the Appellant to await the determination of ELC Petition No 76 of 2017, since the Appellant was not a party to that Petition.

Reasoning

The Respondent invoked sub judice on the basis of Petition No 76 of 2017, but the Appellant was not a party to it. The court held that the Respondent bore the burden of proving his entitlement under customary trust, which he failed to do, and the Appellant could not be barred from claiming ownership by proceedings to which he was a stranger.

p. 9

Legal principles established

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  • Where a registered proprietor's root of title is under challenge, the mere production of the title instrument is insufficient; the proprietor must prove the legality of how the title was acquired
  • A transaction to which the Government (or the Settlement Fund Trustees or a county council) is a party does not require Land Control Board consent under section 6(3) of the Land Control Act
  • A claim of adverse possession against a registered proprietor can only be sustained if the title holder whose title is said to be extinguished is a party to the suit
  • On a first appeal the court must re-evaluate the evidence and draw its own conclusions, while giving due allowance to the trial court's advantage of seeing and hearing the witnesses

Court orders

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  1. 1.The judgment of the lower court in Machakos Chief Magistrate's Land Case No 31 of 2019 is set aside and substituted with judgment for the Plaintiff
  2. 2.A declaration issued that the Appellant (Plaintiff) is the rightful owner of Machakos Town Block 3/695
  3. 3.A permanent injunction restraining the Respondent (Defendant), his servants, agents and/or family members from farming on, grazing on, building on, advertising, entering, trespassing, leasing, charging, selling, dealing with, conveying, subdividing, encroaching on and/or remaining on the Appellant's land Title No Machakos Town Block 3/695 and/or interfering with the Appellant's registered, legal, contractual, equitable interests and rights of quiet ownership, possession, occupation and enjoyment thereof
  4. 4.An order for eviction and demolition of the structures on the said land at the Respondent's (Defendant's) expense with the supervision of the OCS Machakos
  5. 5.Costs of the appeal and the suit in the lower court to be paid by the Respondent

Authorities

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Legislation

  • Land Registration ActSections 24(a), 25, 26(1) and (2), 28
  • Land Control ActSection 6(3)
  • Evidence ActSection 107(1) and (2)
  • Law of Contract ActSection 3(3)
  • Civil Procedure ActSection 6 (sub judice)
  • Registered Land ActSection 28 (proviso, customary trusts)
  • Constitution of KenyaArticle 40 (protection of right to property)
  • Registration of Titles ActProcedural law referred to in Theresa Constabir (repealed)
  • Government Land ActSubstantive law referred to in Theresa Constabir (repealed)

Cases cited (31)

  • Dakianga Distributors (K) Ltd vs Kenya Seed Company Limited
    (2015) eKLR
  • Hellen Wangari Wangechi vs Carumera Muthoni Gathua
    [2015] eKLR
  • Malawi Railways Ltd vs Nyasulu
  • Libyan Arab Uganda Bank for Foreign Trade and Development & Another vs Adam Vassiliads
  • Jones vs National Coal Board
  • Adetoun Olade (NIG) Ltd vs Nigerian Breweries PLC
  • Kibwari PLC vs Principal Land Registration Officer Ministry of Lands & Physical Planning & 6 others
    [2021] eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya
    HCJR/EO45/2020
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
  • William Kiilu Mbuvi & 3 others vs Peter Nzyoka Mbuvi
    (2017) eKLR
  • Peter Kamau Njau vs Emmanuel Charo Tinga
    (2016) eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    [2013] eKLR
  • Cyril J Haron and Andrew vs Uchumi services limited & 3 others
    (2014) eKLR
  • Central Kenya Ltd vs Trust Bank Ltd & 4 others
    (1996) eKLR
  • Nyagate Guso alias Watson Mogere Mogoka vs Maxwell Okemwa Mogere & Another
    (2015) eKLR
  • Nairobi permanent Market society & others Vs Salima Enterprises & Others
    (1993-1998)1EA 232
  • Mwinyi Hamisi Ali vs the Attorney General and Philemon Mwaisaka Wawaka
    Civil Appeal No 123 of 1997
  • Theresa Constabir vs Jeremiah M. Maroro & 3 others
    [2013] eKLR
  • Henry Wambega & 733 Others vs Attorney General & 9 Others
    [2020] eKLR
  • Sangale Ole Langas Vs Stephen Mishish & Anor
    [2018] eKLR
  • David Kipkirui Mutai Vs Joseph Rugut
    [2018] eKLR
  • Koinange & 13 Others vs Koinange
    [1986] eKLR
  • China Zhingxing (Zhongxing) Construction Company Ltd vs Ann Akuru Sophia
    [2020] eKLR
  • Peters vs Sunday Post Limited
    [1958] EA 424
  • Watt vs Thomas
    [1947] A.C. 484
  • Katende vs Haridar & Company Limited
    [2008] 2 E.A.173
  • Kenya National Highway Authority vs Shalien Masood Mughal & 5 others
    [2017] eKLR
  • Chemei Investments Limited vs The Attorney General & Others
    Nairobi Petition No. 94 of 2005 (unreported)
  • Milan Kumar Shah & 2 Others vs City Council of Nairobi & Another
  • Isack M'inanga Kiebia vs Isaaya Theuri M'lintari & another
    [2018] eKLR
  • Kiarie v. Kinuthia
On appeal from
Chief Magistrate's Court, Machakos
Machakos Chief Magistrate's Land Case No 31 of 2019 (Plaint filed in Machakos ELC Case No 29 of 2019)
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrate's Court (Environment and Land Court Act); appeal against the judgment of 13th May 2020

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, "Alex Kyalo Mutua v King’oo Ngulasa [2021] KEELC 1284 (KLR)", Case Analysis (2021). Machakos ELC Appeal (Judgment delivered 29 October 2021, arising from Machakos ELC Case No 29 of 2019 / Chief Magistrates Land Case No 31 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1284/eng@2021-10-29

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