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ELCAllowedCivil Case No. 49 of 2018· [2021] KEELC 4017 (KLR)

Safarino Ojuma Isogoli v Joseph Okochil Ekurut & 3 others [2021] KEELC 4017 (KLR)

Environment and Land Court
3 March 2021
AOA. Omollo
3,773 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who occupied his plot peacefully since 1985 won his land back after the Registrar wrongly cancelled his title without notifying him.

What this practically means

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Executive summary

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The Applicant moved the Environment and Land Court at Busia by Originating Summons under sections 37 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, seeking declarations that his acquisition of title to land parcel South Teso/Amukura/1964 (1.1 ha carved out of parcel 1542) was lawful, that he had acquired the portion by adverse possession, an order reinstating the cancelled title and mutation, and costs. He testified he purchased the portion from Ekurut Opili Emongolik in 1985 for Kshs.10,000, obtained Land Control Board consent in 1994, signed transfer documents, but only obtained title in 2008 because of a third party's caution. The Registrar cancelled the mutation in 2009 upon discovering the registered owner was deceased, and later created parcels 3960, 3961 and 3962 in 2015 following succession proceedings by the Respondents, the deceased's sons. The Respondents denied the sale and occupation, contending the land was distributed through succession. The court framed two issues: whether the cancellation was procedural, and whether adverse possession was established. Holding that the Registrar failed to notify the registered owner before rectification, contrary to sections 79 and 80(2) of the Land Registration Act and natural justice, and that the Applicant's peaceful, uninterrupted occupation since 1985 extinguished the deceased's interest before succession, the court allowed the Originating Summons in full, declared the acquisition lawful and by adverse possession, ordered reinstatement of the title and mutation, and awarded costs to the Applicant.

Key legal issues

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01

Procedural propriety of the Registrar's cancellation of the plaintiff's title

Holding

The cancellation was irregular because the Applicant, the registered owner at the time, was never notified and there was no proof he participated in any fraud

Reasoning

Sections 142 and 143 of the repealed Registered Land Act, replicated in sections 79 and 80(2) of the Land Registration Act, require notice to interested parties before rectification and protect proprietors in possession for value. The Registrar admitted cancelling on discovering the registered owner was deceased but deposed to no attempt to notify the Applicant. Natural justice demands no party be condemned unheard, and no evidence proved the Applicant's complicity in fraud.

p. 4
02

Validity of title acquired after the vendor's demise

Holding

The Applicant lawfully obtained title after the vendor's death since the delay was caused by a third party's caution, not the vendor's default

Reasoning

The vendor signed transfer documents and gave consent to transfer before the Land Control Board in 1994, corroborated by PW2. Registration was prevented by a caution lodged by Leseo Emate, withdrawn only in 2007. Applying the equitable doctrine that equity deems as done that which ought to have been done, and following Willy Kimutai Kitilit v Michael Kibet on equitable doctrines, non-compliance with section 6 of the Land Control Act was overtaken by the earlier suit for specific performance.

p. 5
03

Whether the Applicant acquired the 1.1 ha portion by adverse possession

Holding

Yes - the Applicant's peaceful and uninterrupted occupation since 1985 was unrebutted, extinguishing the vendor's interest before succession

Reasoning

The Applicant occupied from 1985 until 2016 when stopped on the sub-chief's advice. The Respondents' assertion that time was interrupted in 2016 was unsupported by evidence; from the chief's letter the Applicant himself lodged the complaint. The Respondents' own witness statements showed they occupied undisturbed until served with court documents in 2018, and none denied the Applicant's portion was defined. By the time of succession, the deceased's interest was already extinguished.

p. 5

Legal principles established

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  • The Registrar must notify interested parties before rectifying or cancelling a register; failure to do so renders the cancellation irregular
  • A party cannot be condemned unheard - natural justice applies to administrative cancellation of title
  • Where the vendor died before registration, equity deems as done that which ought to have been done, and title obtained after demise is valid absent proof of irregular consent or forgery
  • Equitable doctrines such as constructive trust and proprietary estoppel supersede the Land Control Act where land transactions lack consent, per the Constitution's elevation of equity
  • Where the deceased's interest in the sold portion had been extinguished by adverse possession, that portion does not form part of his estate for distribution to beneficiaries

Court orders

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  1. 1.An Order declaring the Applicant's process or procedure in obtaining the Title deed for land parcel No. SOUTH TESO/AMUKURA/1964 was lawful and legal
  2. 2.An Order declaring that the Applicant had acquired the land parcel No. SOUTH TESO/AMUKURA/1964 and/or the portion of land measuring 1.1 hectares out of the land parcel No. SOUTH TESO/AMUKURA/1542 by adverse possession
  3. 3.An Order directing the 3rd Respondent to reinstate the title deed for land parcel No. SOUTH TESO/AMUKURA/1964 and mutation form that gave rise to the said number and cancel any other number arising out of the land parcel No. SOUTH TESO/AMUKURA/1542
  4. 4.The costs of the suit awarded to the Applicant

Authorities

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Legislation

  • Limitation of Actions Actsections 37 & 38
  • Civil Procedure Rules 2010Order 37 rules 1 & 7
  • Land Registration Act No. 3 of 2012sections 79 and 80(2)
  • Registered Land Act Cap 300 (repealed)sections 142(1)(b) and 143(2)
  • Land Control Actsection 6
  • Constitution of KenyaArticle 10(2)(b)

Cases cited (1)

  • Willy Kimutai Kitilit Vs Michael Kibet
    (2018) eKLR
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act (Cap 22) and Order 37 rules 1 & 7 of the Civil Procedure Rules 2010

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, "Safarino Ojuma Isogoli v Joseph Okochil Ekurut & 3 others [2021] KEELC 4017 (KLR)", Case Analysis (2021). Civil Case No. 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4017/eng@2021-03-03

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