Maritina Murutu v James Amukhoye Eshitera [2021] KEELC 3891 (KLR)
The bottom line
#A registered title deed won the day in Kakamega: a landowner evicted a long-time occupant who produced no proof of ownership.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of registered title under the Land Registration Act
The plaintiff, as registered proprietor, holds absolute and indefeasible title challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition, none of which the defendant proved
The court applied sections 24(a) and 26(1) of the Land Registration Act, relying on Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another, holding title protective except in the two statutory instances. The plaintiff produced her title deed, search certificate and succession rulings as exhibits; the defendant led no evidence.
Burden of proof on the defendant's claim of ownership
The defendant, who alleged he was the legal and equitable owner, bore the burden of proving that claim and failed by adducing no evidence or witnesses
The defendant's testimony that the land belonged to him was unsupported by any evidence or witness, amounting to a bare denial. The plaintiff's evidence, corroborated by PW2 and PW3 and documentary exhibits including prior succession rulings, remained uncontradicted. The court found the plaintiff's case proved on a balance of probabilities.
Trespass and entitlement to eviction
Having trespassed without the plaintiff's consent in 2007/2008 and built a house, the defendant and those claiming through him were ordered to vacate within six months, failing which eviction would issue
The court found as a fact that the plaintiff is the registered proprietor and that the defendant entered the land unlawfully and without consent, denying her quiet possession. Eviction followed directly from the plaintiff's indefeasible title and the uncontradicted evidence of trespass.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership of that land in that person
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud, misrepresentation, or acquisition illegally, unprocedurally or through a corrupt scheme
- A mere denial by a defendant without evidence cannot displace a plaintiff's proved registered title
Court orders
#- 1.The defendant, his relatives, servants and/or agents to vacate the suit land parcel No. N/Wanga/Namamali/889 within 6 months from the date of judgment, in default eviction order to issue forthwith
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maritina Murutu v James Amukhoye Eshitera [2021] KEELC 3891 (KLR)", Case Analysis (2021). ELC Case No. 19 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3891/eng@2021-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.