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ELCDismissedELCA Case No. 24 of 2019· [2021] KEELC 3936 (KLR)

James Karinga Aluvanze v Kennedy Aluvanze & another [2021] KEELC 3936 (KLR)

Environment and Land Court
24 March 2021
1,799 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 dismissed a land appeal because the appellant helped sell the land himself and cannot now claim the sale was illegal.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kakamega against the judgment of Hon. M.L. Nabibya (Mrs), Senior Principal Magistrate, delivered on 27th June 2019 in Hamisi ELC No. 70 of 2018. The appellant, James Karinga Aluvanze, sued the respondents for trespass over Land Parcel No. Kakamega/Shiru/807, registered in the name of his deceased father Zablon Karinga Ayubu, who died in 1998 without any grant of letters of administration. He sought a permanent injunction and the exhumation of the body of the respondents' mother, Selina Muyuga Kibaya, who allegedly purchased 1/8 of the land in 2010 from the appellant's late mother, also without letters of administration. On appeal, the appellant contended the sale was unlawful intermeddling with a deceased's estate and that the respondents lacked locus standi to defend the suit. The court reviewed the sale agreements of 28th July 2010 and 26th August 2013, finding the appellant and his late mother had signed them, that the balance of the purchase price was paid in his presence, and that he had agreed to refund the money if the sale failed. The court held the appellant came to court with unclean hands, that the respondents had an interest in the land, and that the trial magistrate rightly declined the counterclaim pending succession proceedings. Applying Mwanasokoni v Kenya Bus Service, the court declined to disturb the trial court's findings and dismissed the appeal with no orders as to costs.

Key legal issues

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01

Effect of a party's participation in a sale of a deceased person's land on a claim of intermeddling

Holding

A party who signed the sale agreements, witnessed payment of the purchase price, and undertook to refund it cannot later claim the transaction was illegal intermeddling; he comes to court with unclean hands

Reasoning

The appellant and his late mother appended their signatures to the 2010 sale agreement; he was present when the balance of Kshs. 50,000 was paid under the 2013 agreement, and signed a further agreement to refund the purchase price by 31st October 2016. Having participated with the understanding that succession proceedings would be carried out, he cannot turn around and allege the transaction was void. Equity denies him relief on unclean hands grounds.

p. 2
02

Locus standi of the respondents to defend the suit

Holding

The respondents, being beneficiaries of their late mother who purchased the land, had an interest and could not be denied locus by the very appellant who sued them for trespass

Reasoning

It was the plaintiff himself who sued the respondents for trespass, acknowledging their presence and claim on the land. They had an interest as their deceased mother had purchased 1/8 of the suit land. The trial magistrate also declined to grant their counterclaim, holding that the matter needed to go through succession proceedings, thus protecting the estate process while allowing the defence.

p. 2
03

Interference with trial court findings of fact on first appeal

Holding

The trial magistrate's findings were supported by the evidence and were judiciously arrived at, so the appellate court would not interfere

Reasoning

Applying Mwanasokoni v Kenya Bus Service, the court re-evaluated the record, noted the sale agreements signed by the appellant and his late mother and witnessed by the Assistant Chief's office, found the appellant did not come to court with clean hands, and concluded the trial decision was judiciously reached. There was no basis on no evidence, misapprehension, or wrong principles to disturb it.

p. 3
04

Indefeasibility of title under the Land Registration Act

Holding

Sections 24 and 26(1) of the Land Registration Act vest absolute ownership in the registered proprietor, with title challengeable only for fraud, misrepresentation, illegality, unprocedurality or corrupt acquisition

Reasoning

The court set out sections 24(a) and 26(1) of the Land Registration Act and cited Elijah Makeri Nyangw'ra, noting that title can be impugned where obtained illegally, unprocedurally or through a corrupt scheme. This framed the legal context, though the court resolved the appeal on the appellant's participation in the sale and the findings of fact.

p. 2

Legal principles established

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  • An appellate court will not ordinarily interfere with findings of fact of a trial court unless based on no evidence, on misapprehension of the evidence, or on demonstrably wrong principles
  • A first appellate court is duty bound to revisit the evidence on record, evaluate it and reach its own decision
  • Registration vests absolute ownership, and a certificate of title is prima facie evidence of indefeasible ownership, challengeable only on fraud/misrepresentation or illegality, unprocedurality or corruption

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

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

Cases cited (2)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Mwanasokoni v Kenya Bus Service
    (1982 - 88) 1 KAR 870
On appeal from
Senior Principal Magistrates Court at Hamisi
ELC No. 70 of 2018
Jurisdiction invoked
First appeal to the Environment and Land Court under the Environment and Land Court Act against the judgment of the Senior Principal Magistrate's Court

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, "James Karinga Aluvanze v Kennedy Aluvanze & another [2021] KEELC 3936 (KLR)", Case Analysis (2021). ELCA Case No. 24 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3936/eng@2021-03-24

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