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ELCAllowedCivil Case No. 49 of 2018· [2021] KEELC 4124 (KLR)

Safarino Ojuma Isogoli v Joseph Okochil Ekurut & 3 others [2021] KEELC 4124 (KLR)

Environment and Land Court
3 March 2021
AOA. Omollo
3,775 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 Busia court restored a land buyer's cancelled title, ruling the Registrar can't cancel a title without notifying the owner first.

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 was lawful, that he had acquired the 1.1-hectare portion by adverse possession, reinstatement of the cancelled title and mutation form, and costs. He proved he bought the portion from Ekurut Opili Emongolik in 1985, took possession, obtained Land Control Board consent in 1994 after the deceased's statement of admission in BSA SRMCC No. 167 of 1992, and was registered as proprietor in 2008 following withdrawal of a third-party caution. The Registrar cancelled the subdivision in 2009 after learning the registered vendor was deceased, without notifying the applicant. The 1st and 2nd respondents, who succeeded the deceased and obtained new subdivision numbers through succession proceedings, denied the sale and the applicant's occupation. The court framed two issues: whether the cancellation was procedural and whether adverse possession was established. It held the cancellation irregular for want of notice to the registered proprietor and absence of proof of fraud on his part, applying sections 79 and 80(2) of the Land Registration Act and the rules of natural justice. On adverse possession, it found the applicant's peaceful, uninterrupted occupation of a defined portion uncontradicted, so the deceased's interest had been extinguished before succession and could not devolve on beneficiaries. Relying on Willy Kimutai Kitilit v Michael Kibet, the court applied equitable doctrine that equity deems as done what ought to have been done. Judgment was entered for the applicant with all prayers granted and costs awarded to him.

Key legal issues

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01

Whether the cancellation of the applicant's title South Teso/Amukura/1964 was lawful

Holding

The cancellation was irregular because the Registrar never notified the applicant, the registered owner, and no proof of fraud on his part was tendered.

Reasoning

Sections 142(1)(b) of the repealed Registered Land Act and 143(2) (now replicated in sections 79 and 80(2) of the Land Registration Act) require notification of interested parties before rectification. The Registrar's own affidavit disclosed no attempt to notify the applicant, and no evidence showed the applicant caused or contributed to any fraud. Natural justice demanded a hearing.

p. 4
02

Whether the applicant acquired the 1.1 hectare portion by adverse possession

Holding

Yes; the applicant's peaceful and uninterrupted occupation from 1985 of a defined portion was uncontradicted, extinguishing the deceased's interest before succession.

Reasoning

The purchase in 1985, immediate possession, and registration delay caused by a third-party caution were established. The respondents produced no evidence that the occupation was interrupted; the 2016 cessation was on the sub-chief's advice at the applicant's own instance. The respondents' claim of undisturbed occupation did not negate the applicant's defined portion.

p. 5
03

Whether the applicant's title issued after the vendor's death was invalid for non-compliance with the Land Control Act

Holding

No; the delayed consent and post-death registration were excused because the deceased had shown intention to transfer before death.

Reasoning

The deceased entered appearance in the 1992 suit, filed a statement of admission seeking to effect the transfer, attended the Land Control Board, and signed transfer documents. The delay in registration stemmed from Leseo Emate's caution, not the deceased. Equity deems as done that which ought to have been done; non-compliance with section 6 of the Land Control Act was overtaken by the specific performance suit.

p. 5

Legal principles established

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  • A registered proprietor in possession for valuable consideration cannot have the register rectified without knowledge of, or contribution to, the fraud or mistake.
  • The Registrar must notify interested parties before rectifying or cancelling a register; natural justice forbids condemning a party unheard.
  • Where a vendor has shown an intention to transfer the sold portion before death, equity deems as done that which ought to have been done, and title acquired after the vendor's demise is not invalid.
  • Where a purchaser is in peaceful and uninterrupted possession of a defined portion, the vendor's interest is extinguished by adverse possession and does not form part of his estate.

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 rule 1 & 7
  • Land Registration Actsections 79, 80(2), No. 3 of 2012
  • Registered Land Act (repealed)sections 142(1)(b), 143(2)
  • Land Control Actsection 6
  • Constitution of Kenya 2010Article 10(2)(b)

Cases cited (1)

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

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 4124 (KLR)", Case Analysis (2021). Civil Case No. 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4124/eng@2021-03-03

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