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ELCPartially AllowedELC Case No. 50 of 2018· [2021] KEELC 2450 (KLR)

Issa Egesa Wakhanu & 2 others v Henry Efumbi Wakhanu & another [2021] KEELC 2450 (KLR)

Environment and Land Court
27 July 2021
NMN.A. Matheka
1,195 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that registered landowners with title deeds win possession disputes unless the other side proves fraud or appears to defend their case.

What this practically means

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Executive summary

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The three plaintiffs, brothers, sued the two defendants, their step-brothers, claiming ownership and possession of parcels Bunyala/Budonga/1708, 1709 and 1710, registered in their names on 4th October 2005 following transfer from their father Kaliti Wakhanu Sikhira, now deceased. They alleged continuing trespass: the 1st defendant occupied the whole of parcel 1710 and the 2nd defendant occupied parts of parcels 1708 and 1709, cultivating sugar cane and erecting houses. They sought possession, alternatively eviction, a declaration that the defendants were not entitled to enter or use the parcels, a permanent injunction, and costs. The defendants averred they had lived on the land for over thirty years, that it had been apportioned to them by their late father, and that any title obtained was fraudulently acquired without their consent; they claimed to be beneficiaries entitled to a share of the estate. At trial, each plaintiff testified and produced certificates of search. The defendants failed to attend court and offered no evidence. The court applied sections 24(a) and 26(1) of the Land Registration Act, holding registration vests absolute ownership and a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. It applied Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another on the protection of title. Finding the plaintiffs' uncontroverted evidence proved their case on a balance of probabilities, the court ordered the defendants to vacate within 90 days, in default eviction to issue, granted a permanent injunction thereafter, and made no orders as to costs.

Key legal issues

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01

Effect of registration under the Land Registration Act

Holding

The plaintiffs, as registered proprietors of the suit parcels, are entitled to possession; the defendants' occupation is trespass.

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, under which registration vests absolute ownership and a certificate of title is prima facie evidence of indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme. The plaintiffs produced certificates of search proving registration on 4th October 2005, and the defendants, having failed to attend court and offer evidence, adduced nothing to bring the titles within the statutory exceptions.

p. 2
02

Whether the defence of fraudulent acquisition and beneficial entitlement defeated the plaintiffs' titles

Holding

The defence failed for want of evidence; mere allegation of fraud without proof cannot defeat a registered title.

Reasoning

The defendants alleged they had stayed on the land for over thirty years, that their father apportioned it to them, and that the title deeds were fraudulently obtained. However, they failed to attend court and offered no evidence. The plaintiffs' testimony that their father had set aside separate parcels Bunyala/Budonga/1711 and 1712 for the defendants, to be acquired by transmission from the deceased's estate, was uncontroverted. Unchallenged evidence of registration was therefore accepted and the case proved on a balance of probabilities.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • Civil claims are proved on a balance of probabilities; uncontroverted evidence remains unchallenged

Court orders

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  1. 1.The defendants to vacate parcels Bunyala/Budonga/1708, 1710 and 1709 within 90 days from the date of judgment, in default an eviction order to issue
  2. 2.A permanent injunction thereafter to restrain the defendants, their relatives, servants and agents from entering, remaining or using the said parcels
  3. 3.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to ownership, possession and occupation of land

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, "Issa Egesa Wakhanu & 2 others v Henry Efumbi Wakhanu & another [2021] KEELC 2450 (KLR)", Case Analysis (2021). ELC Case No. 50 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2450/eng@2021-07-27

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