Peter W. Chikati & 2 others v John Obote Wamalwa & another [2021] KEELC 3042 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's trespass suit because the title deed alone could not prove ownership of land found not to exist on the ground.
What this practically means
#Executive summary
#Key legal issues
#Validity of the plaintiffs' title under Section 26(1) of the Land Registration Act
Although prima facie absolute and indefeasible, the title was impeached as it was fraudulently created outside the boundaries of the parent parcel on top of land owned by the County Council of Bungoma
The court held that title issued under Section 26(1) can be impeached where obtained through fraud or illegally. The uncontroverted County Surveyor's report, adopted as an order of the Court by consent, found the suit land was surveyed and created on top of parcel KIMILILI/KIMILILI/875 reserved for Kimilili Trading Centre, with boundaries of the parent parcel not accurately pointed out 'with intent to defraud or an omission'. The plaintiffs produced no contradicting report.
Weight of expert (surveyor) evidence
The County Surveyor's report, prepared pursuant to a consent order and adopted as an order of the Court, was entitled to high regard and the court adopted its findings
The surveyor testified as an expert under Section 48(1) of the Evidence Act. The court noted it is not bound by expert opinion but such evidence must not be rejected except on firm grounds. The plaintiffs never impeached the surveyor's credentials, sought time to produce a second report but never did, and their witness's attempt to dismiss the report as 'fictitious' was unsupported by reasons or any contrary report.
Burden of proving trespass
The plaintiffs failed to discharge the burden of proving trespass and construction of illegal structures by the defendants
Having pleaded trespass, the burden lay on the plaintiffs under Sections 107 and 109 of the Evidence Act. The surveyor's uncontroverted evidence located the defendants' kiosks inside parcel KIMILILI/KIMILILI/875, not the suit land. The 1st plaintiff's denial that the surveyor visited the site or that his report was adopted contradicted the court record, portraying him as unreliable and dishonest.
Legal principles established
#- When a registered proprietor's root of title is under challenge, it is not enough to produce the title instrument; the proprietor must prove the legality of the acquisition
- Expert evidence obtained with the consent of the parties and adopted as an order of the Court must be given its due probative value and not rejected except on firm grounds
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.Costs of the suit awarded to the 2nd defendant only
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ethuru v Thikanyi & 2 others[2023] KEELC 21254 (KLR)1 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Peter W. Chikati & 2 others v John Obote Wamalwa & another [2021] KEELC 3042 (KLR)", Case Analysis (2021). Environment and Land Case No 161 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3042/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.