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ELCPartially AllowedNot stated in the judgment text· [2021] KEELC 1372 (KLR)

Fredrick Wabwire Makoba & 2 others v Barasa Owino Mambanga [2021] KEELC 1372 (KLR)

Environment and Land Court (High Court of Kenya)
14 October 2021
AOA. Omollo
2,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The court ruled the defendant sold, not leased, the land and gave him 90 days to vacate after failing to prove fraud.

What this practically means

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Executive summary

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The plaintiffs sued for an eviction order and costs, averring that they jointly purchased 0.7 Ha out of Bukhayo/Kisoko/3295 from the defendant for Kshs.192,000/= under a sale agreement dated 12/12/2010, paid in full, and that the defendant later returned from Uganda and trespassed on the purchased portion, which had been subdivided and registered as Bukhayo/Kisoko/10510. The defendant, in his defence and counterclaim, contended the transaction was a lease of his entire parcel for sugarcane cultivation, alleged the plaintiffs fraudulently procured the subdivision and title without his consent and without attending the Land Control Board, and sought cancellation of the title, reversion to the original parcel, and mesne profits. He also noted a pending criminal case over the same subject matter. At trial, PW1 and PW2 testified to the sale and produced the sale agreement, the letter of consent to transfer, and the Land Control Board application; the defendant and his witnesses claimed a lease, but DW3 admitted signing the sale agreement. The court found the parties entered into a sale agreement, noting both agreements described the purpose as buying and selling the land and rejecting the belated illiteracy defence. Applying the strict standard of proof of fraud from R.G. Patel v. Lalji Makanji, the court held the defendant failed to prove the alleged fraud. As registered owners in occupation under sections 24 and 25 of the Registration of Land Act, the plaintiffs were entitled to exclusive possession. Judgment was entered for the plaintiffs: the defendant was granted 90 days to surrender vacant possession, failing which the plaintiffs may evict him lawfully, with costs of the suit to the plaintiffs. The counterclaim was thereby unsuccessful.

Key legal issues

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01

Nature of the transaction: sale or lease

Holding

The court found the parties entered into a sale agreement dated 12/12/2010, rejecting the defendant's lease defence

Reasoning

Both parties admitted executing an agreement; both the plaintiffs' agreement (PEX1) and the defendant's own agreement (DEX1) stated the purpose as buying and selling the suit parcel. Documentary evidence, including the consent to transfer and Land Control Board application signed by the defendant, corroborated the sale. The claim of illiteracy was unsupported and belated.

p. 3
02

Whether fraud in acquisition of the plaintiffs' title was proved

Holding

The defendant failed to prove the particulars of fraud; the standard of proof for fraud is higher than a mere balance of probabilities

Reasoning

Relying on R.G. Patel v. Lalji Makanji, the court held fraud must be strictly proved. The defendant did not dispute his signature on the Land Control Board consent application and produced no records showing the consent was irregularly obtained. His assertion that the title issued while he was in prison was insufficient.

p. 3
03

Entitlement to eviction

Holding

As registered owners in occupation, the plaintiffs were entitled to exclusive possession and an eviction order

Reasoning

Under sections 24 and 25 of the Registration of Land Act, registered owners are entitled to exclusive use and possession. The defendant did not dispute the plaintiffs' long occupation, and no basis was shown to deny the eviction prayers sought in the plaint.

p. 3

Legal principles established

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  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required.
  • A registered owner in occupation is entitled to exclusive use and possession of the land under the Registration of Land Act.

Court orders

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  1. 1.The defendant is granted 90 days to surrender vacant possession of the portion of land BUKHAYO/KISOKO/10510 he is occupying
  2. 2.In default, the plaintiff is granted liberty to evict him using lawful means
  3. 3.Costs of the suit is awarded to the plaintiff

Authorities

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Legislation

  • Registration of Land Actsections 24 and 25

Cases cited (1)

  • R.G. Patel v. Lalji Makanji
    (1975) EA 314
Jurisdiction invoked
Original civil jurisdiction over a land dispute (claim for eviction under a plaint; relief grounded on sections 24 and 25 of the Registration of Land 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, "Fredrick Wabwire Makoba & 2 others v Barasa Owino Mambanga [2021] KEELC 1372 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1372/eng@2021-10-14

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