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ELCPartially AllowedPetition dated 2nd October 2020· [2021] KEELC 2278 (KLR)

Bosire Obwachi v Land Registrar, Kisii County & another [2021] KEELC 2278 (KLR)

Environment and Land Court
21 July 2021
JOJ.M ONYANGO
2,287 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled fraudulent land register entries made without the owner's consent, restoring his ownership and awarding costs against the Registrar.

What this practically means

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Executive summary

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The Petitioner, registered owner of LR. NO. MAJOGE/BOOCHI/1582 since 1969, petitioned against entries numbers 3 and 4 on the register dated 14th April/May 2011 which purported to record transfer of the property to one Wilkister Moraa Boera. He alleged the 1st Respondent fraudulently and corruptly altered the Green Card despite conservatory orders issued in KISII HCC MISC. APPLICATION NO. 6 OF 2011 (JR), which had quashed an Ogembo Land Disputes Tribunal award in Boera's favour and preserved the property in his name. An official search of 21st November 2014 still showed him as owner, contradicting the backdated entries. The Respondents did not enter appearance and the Petition proceeded undefended by written submissions. The court first asked whether the undefended Petition met the Anarita Karimi threshold, holding it did since the Petitioner particularised violations of articles 10(2), 21(1), 22(1), 27(1), 40(2) and 50. On the merits, the court found the entries were made fraudulently and without the Petitioner's consent, contrary to sections 24 and 25 of the Land Registration Act, 2012, relying on Shimoni Resort of Tittles v Registrar of Titles that unconsented alterations are a nullity ab initio. The court allowed the Petition: declaring the Petitioner entitled to constitutional protection, declaring entries 3 and 4 illegal, fraudulent, null and void, ordering their cancellation and reinstatement of entry number 2, prohibiting further interference with the register, and awarding costs against the 1st Respondent. Damages, though sought, were not granted in the final orders.

Key legal issues

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01

Whether the Petition meets the constitutional threshold

Holding

The Petition met the Anarita Karimi threshold as the Petitioner particularised the violations of articles 10(2), 21(1), 22(1), 27(1), 40(2) and 50.

Reasoning

The court applied Anarita Karimi Njeru v Republic, requiring precision in pleading constitutional violations, and Ostenah Ogero Taracha, requiring proof of violation. The Petitioner had clearly particularised the impugned entries on the Green Card and the constitutional provisions infringed, so the undefended Petition was held merited.

p. 3
02

Whether the impugned register entries were fraudulent and should be cancelled

Holding

The entries in favour of Wilkister Moraa Boera were made fraudulently, contrary to subsisting conservatory orders and without the Petitioner's consent, and were cancelled.

Reasoning

The official search of 21st November 2014 showed the property still registered in the Petitioner's name, contradicting the Green Card entries backdated to 2011. The alterations were made without notice to the absolute proprietor contrary to sections 24 and 25 of the Land Registration Act, 2012, and the Respondents' averments were uncontroverted, warranting the reliefs sought.

p. 3

Legal principles established

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  • A petitioner seeking constitutional redress must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement.
  • Alterations to a register affecting title made without the proprietor's consent are a nullity ab initio.

Court orders

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  1. 1.A declaration that the Petitioner is entitled to protection under the Constitution of Kenya 2010.
  2. 2.A declaration that entries number 3 and number 4 on the register of LR. NO. MAJOGE/BOOCHI/1582 entered on 14th May, 2011 are illegal, fraudulent, null and void for all intents and purposes.
  3. 3.An order cancelling entries number 3 and 4 and reinstating entry number 2 on the register to reflect registration of the suit property in the name of the Petitioner.
  4. 4.An order of prohibition prohibiting the Respondents, in particular the 1st Respondent, from further interfering with the register of the suit property or altering the entries thereon.
  5. 5.Costs of the Petition to be borne by the 1st Respondent.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10(2), 21(1), 22(1), 27(1), 40(2), 50
  • Evidence Act Cap 80Section 107(1)
  • Land Registration ActSections 24 and 25

Cases cited (4)

  • Anarita Karimi Njeru -vs- Republic
    1976-1980 KLR / [1979] eKLR
  • Ostenah Ogero Taracha v Ethics & Anti-Corruption Commission & Attorney General
    [2017] eKLR
  • Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Shimoni Resort of Tittles Vs Registrar of Titles and 5 Others
    [2016] eKLR
Jurisdiction invoked
Articles 10(2), 21(1), 22(1), 27(1), 40(2) and 50 of the Constitution of Kenya 2010

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, "Bosire Obwachi v Land Registrar, Kisii County & another [2021] KEELC 2278 (KLR)", Case Analysis (2021). Petition dated 2nd October 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2278/eng@2021-07-21

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