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ELCPartially AllowedNot stated in the judgment (Plaint dated 6th July 2021, filed 19th July 2021)· [2022] KEELC 3261 (KLR)

Wainaina v Kiguru & another (Environment & Land Case E023 of 2021) [2022] KEELC 3261 (KLR)

Environment and Land Court
28 July 2022
LGL. Gacheru
3,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title issued over an already-allocated co-operative plot, confirming that a title deed alone does not guarantee ownership.

What this practically means

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Executive summary

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The plaintiff, a member of the 2nd defendant co-operative society, sued seeking declarations that he was the valid owner of Plot No. 2xx, later LR Mitubiri/Wempa/Block 2/26xx, and that the title subsequently issued to the 1st defendant was illegally procured and should be cancelled, together with general damages and costs. He alleged he was allotted the plot through balloting in 1988 (with receipts showing membership and survey payments from 1978), took possession, and discovered in March 2010 that his name had been removed from the society's register and the plot transferred to the 1st defendant. A Cooperative Tribunal decision in Tribunal Case No. 452 of 2011 confirmed his membership. The defendants never entered appearance and the suit proceeded as a formal proof hearing before L. Gacheru J at Murang'a. The court reiterated that uncontroverted evidence must still meet the balance of probability standard. Examining the ballot card, payment receipts, a certificate of official search, an extract of the society's register of members and a Liquidators' Status Report confirming the plaintiff as the rightful owner, the court found the plaintiff was the first allottee and had proved the root of his title under Section 107 of the Evidence Act. Applying Section 26(1) of the Land Registration Act and the principle that title may be impeached where procured illegally, unprocedurally or through fraud, and the double-allocation rule that the first allotment prevails, the court held the 1st defendant's title impeachable. Judgment was entered for the plaintiff jointly and severally against the defendants in terms of prayers 1, 2 and 4; general damages were refused for want of supporting evidence; costs were awarded to the plaintiff under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the plaintiff proved ownership of the suit property despite uncontroverted evidence and absence of the defendants.

Holding

The plaintiff proved on a balance of probability that he was the first allottee and the legal owner of the suit property; uncontroverted evidence is still subject to the rules of evidence.

Reasoning

The court held that uncontroverted evidence is subject to the rules of evidence and the plaintiff had to prove his case on a balance of probability. The plaintiff produced his ballot card, receipts showing membership from 1978 and payment for survey, and a Liquidators' Status Report confirming him as the rightful owner. The 1st Defendant's membership receipt dated 1979 post-dated the plaintiff's allotment, and the court had no benefit of the 1st Defendant's evidence on how she acquired title. The first allotment prevails in cases of double allocation.

p. 5
02

Whether the title issued to the 1st Defendant should be cancelled.

Holding

The 1st Defendant's certificate of title was procured unprocedurally, is impeachable under Section 26(1) of the Land Registration Act, and the register should be rectified in favour of the plaintiff under Section 80(1).

Reasoning

Relying on Sections 26(1)(a) and (b) and 80(1) of the Land Registration Act, the court held that although a certificate of title is prima facie conclusive evidence of ownership, it is not absolute and may be impeached where acquired illegally, unprocedurally or through a corrupt scheme. Having found the plaintiff to be the lawful owner and the 1st Defendant's registration unprocedural, the court exercised its discretion to order rectification of the register in the plaintiff's favour.

p. 6
03

Who should bear the costs of the suit.

Holding

The plaintiff, as the successful litigant, is entitled to costs under Section 27 of the Civil Procedure Act.

Reasoning

Section 27 of the Civil Procedure Act gives the court discretion on costs. The general rule is that costs follow the event, with the successful party entitled to costs except in exceptional circumstances. The court found no exceptional circumstances existed and therefore awarded costs to the successful plaintiff.

p. 6

Legal principles established

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  • Uncontroverted evidence must still satisfy the burden of proof on a balance of probability; formal proof is required even where the defendant does not appear.
  • When a registered proprietor's root of title is challenged, the proprietor must go beyond the title instrument to prove the legality of acquisition.
  • Where there is a double allocation of land, the first allotment prevails; there is no power to allot the same property again.
  • A certificate of title may be impeached on the ground of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally in terms of prayers No. 1, 2 and 4 of the Plaint dated 6th July 2021
  2. 2.Declaration that the suit property validly belonged to the plaintiff (prayer 1)
  3. 3.Declaration that the registration and title issued to the 1st Defendant was illegally done and cancellation thereof (prayer 2)
  4. 4.Costs of the suit awarded to the plaintiff
  5. 5.General damages refused as no evidence was adduced to support them

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)(a) and (b)
  • Land Registration ActSection 80(1)
  • Evidence Act, Cap 80 Laws of KenyaSection 107
  • Civil Procedure ActSection 27

Cases cited (8)

  • Shaneebal Limited v County Government of Machakos
    {2018}
  • Karuru Munyororo v Joseph Ndumia Murage & Another
    Nyeri HCC No. 95 of 1988
  • Alice Chemutai Too v Nickoson Kipkurui Korir & 2 Others
    (2015) eKLR
  • Samson S. Maitai & Ano v African Safari Club Ltd & Ano.
    (2010) eKLR
  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR
  • Hebert L Martin & 2 Others v Margaret J Kamar & 5 Others
    {2016}
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • M’ikiara M’rinkanya & Another v Gilbert Kabeere M’binjiwe
    {1982-1988} I KAR 196
Jurisdiction invoked
Original civil jurisdiction over land disputes; Land Registration Act, Sections 26 and 80; Civil Procedure Act, Section 27

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wainaina v Kiguru & another (Environment & Land Case E023 of 2021) [2022] KEELC 3261 (KLR)", Case Analysis (2022). Not stated in the judgment (Plaint dated 6th July 2021, filed 19th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3261/eng@2022-07-28

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