Albert Lusimba Rague & another v County Government of Kakamega & another [2021] KEELC 3924 (KLR)
The bottom line
#A Kenyan court dismissed a family's claim to land held by the Kakamega County Government because registered titles and public land cannot be defeated without solid proof of fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants' title was procured by fraud so as to be liable to cancellation under section 26(1) of the Land Registration Act
The 1st defendant was lawfully registered as owner in 1973; the plaintiffs failed to prove fraud, and the certificate of title remained prima facie and indefeasible
The court applied sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and render the certificate prima facie evidence of indefeasible title, challengeable only on fraud to which the proprietor is a party, or acquisition that is illegal, unprocedural or through a corrupt scheme. The plaintiffs produced no evidence of the alleged excision of their father's parcel or of secret irregular registration. The Ndungu Report and correspondence showed the land was public land first reserved for Musaa Stores and later surrendered for a rehabilitation centre.
Whether the plaintiffs acquired title by adverse possession
No, because the suit land is public land over which adverse possession cannot be claimed
Having found that the land was public land, first reserved for Musaa Stores and later surrendered for a rehabilitation centre, the court held that prescriptive rights cannot be acquired against public land. The plaintiffs' claim of occupation since the 1950s under section 30 of the repealed Registered Land Act and section 28(h) of the Land Registration Act therefore could not sustain the alternative claim.
Whether the plaintiffs proved ownership of the suit land on a balance of probabilities
The plaintiffs proved ownership of Isukha/Shirere/1073, not of the suit parcel Isukha/Shirere/1074, and failed to discharge the burden of proof
The plaintiffs' search certificate related to parcel 1073 in their late father's name, and they alleged the suit parcel was illegally hived off from it. The court found no evidence of the alleged excision, secret registration or trust arrangement, and held the plaintiffs failed to prove their case on a balance of probabilities, dismissing the suit with costs.
Legal principles established
#- Registration as proprietor vests absolute ownership of land in the registered person
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud/misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- A claim of adverse possession cannot lie against public land
Court orders
#- 1.The plaintiffs' suit is dismissed with costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act (title, registration and occupation of land); not expressly pleaded in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Albert Lusimba Rague & another v County Government of Kakamega & another [2021] KEELC 3924 (KLR)", Case Analysis (2021). ELC Case No. 41 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3924/eng@2021-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.