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ELCDismissed· [2021] KEELC 4772 (KLR)

Amos Mwai Oyoo v Attorney General & another [2021] KEELC 4772 (KLR)

Environment and Land Court
9 December 2021
GOG M A Ong'ondo
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's ownership lawsuit collapsed because the parcel he claimed did not exist on the ground or on official maps.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 14th April 2020 claiming to be the registered absolute proprietor of LR Central/Kasipul/Kamuma/4406, purchased for value, and alleged that the 2nd defendant invaded the land in March 2020, demolished structures and fenced it, and had procured registration through fraud. He sought declarations of ownership, nullification of any title to the 1st defendant, restoration of the land to his name, a permanent injunction, general damages and costs. The 1st defendant did not enter appearance; the 2nd defendant denied the claim and alleged the plaintiff's own registration was fraudulent. On 22nd July 2020 the court directed the Land Registrar, Rachuonyo and the County Surveyor, Homa Bay to visit the suit land and parcels 5882 and 5883 and report. Their report of 7th September 2020 found that parcel 4406 was fraudulently created, exists only on paper, and does not appear on the area map, while parcels 5882 and 5883 properly exist. The plaintiff did not respond to or challenge the report and filed no submissions. The court held the report was opinion evidence, persuasive but cogent and unchallenged, and that it finally determined all issues. The suit was dismissed with costs to the plaintiff's own burden under the proviso to section 27(1) of the Civil Procedure Act.

Key legal issues

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01

Existence of the suit land

Holding

The suit land LR Central/Kasipul/Kamuma/4406 was fraudulently created and exists only on paper

Reasoning

The Land Registrar's report, prompted by the court's orders of 22 July 2020, established that parcel 4406 does not appear on the area map and was never subdivided from original parcel 3098, whereas parcels 5882 and 5883 properly exist on the ground and map. The report was unchallenged by the plaintiff.

p. 1
02

Weight of expert/opinion evidence

Holding

The report is opinion evidence, persuasive in nature, and the court may accept or reject it; here the court accepted it

Reasoning

Sections 48 to 54 of the Evidence Act govern opinion evidence. The report is persuasive, but being cogent, instructive and unchallenged, the court found no reason to reject it. The plaintiff failed to respond to it despite being accorded the opportunity.

p. 2

Legal principles established

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  • The court is at liberty to accept or reject expert/opinion evidence depending on the facts and circumstances of the case
  • A court-ordered Land Registrar and Surveyor report may finally determine a boundary/existence dispute where unchallenged

Court orders

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  1. 1.The plaintiff's suit originated by plaint dated 14th April 2020 and filed on 15th April 2020 is dismissed
  2. 2.Costs of the suit to be borne by the plaintiff by dint of the proviso to section 27(1) of the Civil Procedure Act

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(b)
  • Constitution of Kenya, 2010Articles 48 and 50(1)
  • Land Registration ActSections 18 and 19
  • Evidence Act, Chapter 80 Laws of KenyaSections 48 to 54
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27(1)

Cases cited (4)

  • CD Desouza vs BR Sharma
    (1953) 26 KLR 41 at 42
  • Andrew Marigwa vs Josephat Kebati Ondieki
    (2017) eKLR
  • Registered Trustees, Legio Maria Africa Church Mission versus Simeon Nyamweya Obwocha
    (2018) eKLR
  • James Kanyiita Nderitu and another vs Marios Philotas Ghikas and another
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Constitution of Kenya, 2010 and the Land Registration Act; report ordered under the court's inherent directions

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, "Amos Mwai Oyoo v Attorney General & another [2021] KEELC 4772 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4772/eng@2021-12-09

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