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ELCDismissedELC Appeal No. 45 of 2021· [2022] KEELC 1411 (KLR)

Zachary Omondi Odongo v Bernard Stephen Omollo & 2 others [2022] KEELC 1411 (KLR)

Environment and Land Court
17 February 2022
AKA.Y Koross
3,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court confirmed that a land title obtained without proper procedures like Land Control Board consent can be cancelled, even against an innocent buyer.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Siaya against the judgment of the Senior Resident Magistrate's Court at Ukwala (Hon. C.N. Sindano, SRM) dated 16/10/2019, which had allowed the 1st respondent's claim. The 1st respondent bought a 0.3 ha portion of SOUTH/UGENYA/YIRO/2771 from the 2nd respondent for Kshs 80,000; subdivisions 2836 and 2837 were created, but the 2nd respondent entered a second sale agreement with the appellant, and the entire parcel was transferred to the appellant. The trial court ordered cancellation of the new entries. On appeal, the appellant argued he was an innocent purchaser for value without notice of fraud, that the trial court disregarded his documents, and that no fraud was pleaded against him. The court, per Koross J, applied Sections 24, 25 and 26 of the Land Registration Act and held that although registration vested title in the appellant, the Transfer Form breached Sections 43(2), 44, 45 and 46, was unstamped, unregistered and unsupported by a Land Control Board Consent under Section 6(1) of the Land Control Act, rendering the title impeachable as unprocedurally acquired. The court applied Selle v Associated Motor Boat Co on its first appellate duty, upheld the burden-of-province analysis under Section 107 of the Evidence Act, and found that although no fraud finding was made, Section 26(1)(b) renders unprocedurally acquired titles impeachable without proof of the proprietor's complicity. All three grounds failed; the appeal was dismissed, the trial court's decision upheld, and costs awarded to the respondents.

Key legal issues

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01

Whether the appellant's registered title was protected as an innocent purchaser for value

Holding

No - the title was unprocedurally acquired and impeachable under Section 26(1)(b) of the Land Registration Act

Reasoning

Although registration vested absolute ownership under Sections 24(a) and 25, the Transfer Form contravened Sections 43(2), 44, 45 and 46 of the Land Registration Act, was unstamped and unregistered, and no Land Control Board Consent was obtained. Section 26 lifts the veil of protection for titles acquired unprocedurally, so the trial court's finding was upheld.

p. 5
02

Whether the trial court disregarded the appellant's documentary evidence

Holding

No - the trial court considered the oral and documentary evidence, and the appellant failed to discharge his burden of proof

Reasoning

Under Section 107 of the Evidence Act, he who alleges must prove. The record showed the trial court evaluated the payments, title deed, transfer forms, absence of Land Control Board consent and of stamp duty. The appellant did not prove his case to the required standard, so the second ground failed.

p. 6
03

Whether the absence of a specific pleading of fraud against the appellant vitiated the trial court's judgment

Holding

The trial court made no finding of fraud or misrepresentation, but upheld the title as unprocedurally acquired, so the third ground failed

Reasoning

While fraud must be specifically pleaded and proved, the trial court found the transfer unprocedural, irregular and unlawful rather than fraudulent. Since this court had already upheld the finding of unprocedural acquisition under Section 26(1)(b), which does not require proof of the proprietor's participation in fraud, the absence of a fraud finding did not assist the appellant.

p. 6
04

The duty of a first appellate court

Holding

A first appellate court must reconsider and evaluate the evidence afresh, though making due allowance for not having seen or heard the witnesses

Reasoning

Relying on Selle & Another v Associated Motor Boat Co. Ltd & Others, the court restated that an appeal by way of retrial requires the appellate court to re-evaluate the evidence and draw its own conclusions while bearing in mind it did not see or hear the witnesses, and to rarely disturb factual findings absent misdirection.

p. 4

Legal principles established

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  • A title acquired illegally, unprocedurally or through a corrupt scheme is impeachable under Section 26 of the Land Registration Act even without proof of the proprietor's participation in fraud
  • Fraud must be specifically pleaded, particularised and proved to a standard higher than a balance of probabilities

Court orders

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  1. 1.The decision of the Honorable Magistrate delivered on 16/10/2019 in Ukwala SRM ELC NO. 32 OF 2019, is hereby upheld
  2. 2.The appellant shall bear the costs of this appeal

Authorities

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Legislation

  • Land Registration ActSections 24(a), 25(1), 26, 43(2), 44, 45, 46
  • Land Control ActSections 6(1), 8
  • Stamp Duty Actnot specified
  • Land Registration (General) Regulations 2017Regulation 7
  • Evidence ActSection 107
  • Government Proceedings ActSection 13A
  • Civil Procedure RulesOrder 2 Rule 10(1)

Cases cited (13)

  • Katende v Haridar & Company Limited
    [2008] 2 E.AZ.173
  • Lawrence Mukiri v Attorney General & 4 others
    [2013] eKLR
  • Lawrence v Lord Norreys
    (1880) 15 App. Cas 210
  • Davy v Garret
    (1878) 7 Ch. D 473
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Barnabas Biwott v Thomas Kipkorir Bundotich
    [2018] eKLR
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    Civil Appeal No. 246 of 2013 (2015) eKLR
  • Daudi Kiptugen v Commissioner Of Lands Nairobi Lands & 4 others
    [2015] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Lucio Matingwony (Suing as the Administratrix of the Estate of Kimalel Matingwony (Deceased) v Kipkemoi Rop & 6 others
    [2018] eKLR
  • Elijah Makeri Nyangwra _vs- Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR (Civil Appeal No. 106 of 2000)
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR (Civil Appeal No 132 of 2005)
On appeal from
Senior Resident Magistrate's Court at Ukwala
ELC Case Number 32 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Zachary Omondi Odongo v Bernard Stephen Omollo & 2 others [2022] KEELC 1411 (KLR)", Case Analysis (2022). ELC Appeal No. 45 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1411/eng@2022-02-17

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