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ELCPartially AllowedEnvironment & Land Case 150 of 2014· [2022] KEELC 13636 (KLR)

Grace Ayugi Mahulo (Also suing as the administrator of the Estate of the Late Marcelina Amolo Mahulo) v Samuel Okello & 4 others

Environment and Land Court of Kenya
13 October 2022
1,435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered Kenyan landowner won eviction against five occupants because her title was untainted by fraud, but lost her rent compensation claim for lack of proof.

What this practically means

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Executive summary

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The plaintiff, Grace Ayugi Mahulo, also suing as administratrix of the estate of the late Marcelina Amolo Mahulo, sued five defendants claiming to be the registered owner of Kisumu/Kinyakwar 'A'/27, having acquired title by a deed dated August 2, 2012 issued in execution of a decree in Kisumu CMCC Land Case No 36 of 2006. She alleged the defendants were unlawfully occupying the land, erecting structures and using it for business and residential purposes, and sought a declaration of ownership, eviction, a permanent mandatory injunction, and mesne profits of Kshs 30,000 per month from August 2, 2012. The 1st and 3rd defendants filed defences claiming to be bona fide purchasers in occupation of unsurveyed plots 122 and 120 of the Migori Site and Service Scheme; the 2nd, 4th and 5th defendants filed no defence. At trial the plaintiff called five witnesses and produced exhibits including the original title deed; the defence called no evidence. The court found the suit property registered in the plaintiff's names and plots 120 and 122 non-existent. Applying Article 40 of the Constitution and section 26 of the Land Registration Act, and its own earlier decision in Republic v Land Registrar Taita Taveta District, the court held the title indefeasible absent proof of fraud, illegality or corrupt scheme. Judgment was entered for the plaintiff on a balance of probabilities: a declaration of ownership and trespass, an eviction order, and a permanent mandatory injunction were granted, with costs to the plaintiff. Mesne profits were declined as unproved.

Key legal issues

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01

Indefeasibility of the plaintiff's registered title

Holding

The plaintiff's title to Kisumu/Kinyakwar 'A'/27 was indefeasible as no fraud, illegality or corrupt scheme was proved against her; the defendants were trespassers

Reasoning

The plaintiff held a title deed issued pursuant to a decree in Winam PMCC No 36 of 2006. Section 26 of the Land Registration Act renders such a certificate conclusive evidence of proprietorship, challengeable only on fraud or misrepresentation to which the proprietor is party, or illegal, unprocedural or corrupt acquisition. The defence called no evidence and adduced nothing to impeach the title. The plaintiff's constitutional property rights under Article 40 therefore prevailed, and the defendants' occupation lacked any lawful basis.

p. 3
02

Existence of plots 120 and 122 Migori Site and Service Scheme claimed by the defendants

Holding

Plots 120 and 122 were non-existent; the defendants' defence of bona fide purchase failed

Reasoning

The 1st and 3rd defendants claimed to be bona fide purchasers of unsurveyed residential plots 122 and 120 of the Migori Site and Service Scheme. The court found no documents supporting the creation of those plots. The defence filed no evidence at trial, leaving the plaintiff's uncontroverted testimony and exhibits. Consequently the defendants could not establish any proprietary, legal or equitable interest displacing the plaintiff's registered title.

p. 3
03

Mesne profits

Holding

Mesne profits at Kshs 30,000 per month were refused for want of proof

Reasoning

Although the plaintiff claimed mesne profits for loss of use from the date of the title deed, the court found the claim unproved. No evidence quantifying the loss was established on a balance of probabilities, so this head of relief was declined despite the success on liability.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership and cannot be challenged except on fraud, misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.Declaration that the plaintiff is the owner/proprietor of Kisumu/Kinyakwar 'A'/27 and the defendants jointly and severally occupying it are trespassers
  2. 2.Eviction order against the defendants jointly and severally
  3. 3.Permanent mandatory injunction restraining the defendants, their servants, agents or any person claiming through them from remaining on, occupying, using, developing or interfering with the plaintiff's proprietary rights over the suit property
  4. 4.Costs of the suit to the plaintiff
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution, not expressly cited in the judgment)

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, "Grace Ayugi Mahulo (Also suing as the administrator of the Estate of the Late Marcelina Amolo Mahulo) v Samuel Okello & 4 others", Case Analysis (2022). Environment & Land Case 150 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13636/eng@2022-10-13

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