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ELCDismissedEnvironment & Land Case 29 of 2021· [2022] KEELC 14879 (KLR)

Gikonyo v Attorney General & another

Environment and Land Court
29 September 2022
ABAK Gikonyo Bor
5,117 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A landowner lost his title dispute because he couldn't prove his claim with documents, showing paperwork beats possession in Kenyan land cases.

What this practically means

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Executive summary

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The Plaintiff, claiming to be an original shareholder of Othaya Mahiga Chinga Exfacco Limited, sued after discovering in 2014 that the Suit Property, Mutara/Mutara Block II/708 (Uruku), had been registered in the 2nd Defendant's name in 2013 despite his holding a title deed issued in 1997. He sought a declaration of ownership, findings that the Land Registrar's transactions were fraudulent and illegal, cancellation of the 2nd Defendant's registration and reinstatement of his name on the register. The 2nd Defendant denied the claim, asserting he was the original allottee whose name had been fraudulently cancelled in the Company's register and replaced with the Plaintiff's; the Company's Board confirmed him as the rightful owner, and after gazette notice the Land Registrar issued him a title in 2013. The 1st Defendant did not participate. The court framed the issue as whether the Plaintiff proved his case on a balance of probabilities, and at its heart, who held the superior claim. It found the Plaintiff failed to explain how his plot number changed from 653 to 708, produced no clearance certificate or ballot card, and called no witness from the Company, whereas the 2nd Defendant produced ballots, receipts, a clearance certificate and a Company official who denounced the register cancellation as fraudulent. The court rejected the argument that Section 107 of the LRA gave blanket protection to titles acquired under the repealed RLA, held the LRA applicable, and observed that the Plaintiff's remedy against the Registrar's gazetted decision was judicial review. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Plaintiff proved a superior title to the Suit Property

Holding

The Plaintiff failed to prove a better title than the 2nd Defendant

Reasoning

The Plaintiff did not explain how his plot number changed from 653 to 708, did not produce a clearance certificate or the Company's list of shareholders, and did not call a witness from the Company. The 2nd Defendant, by contrast, produced ballots, receipts, a clearance certificate and called a Company official who denounced the cancellation of his name in the register as fraudulent.

p. 8
02

Whether Section 107 of the LRA shields titles acquired under the repealed RLA from scrutiny

Holding

No; the propriety of the acquisition process can still be inquired into, and the LRA applies to these proceedings

Reasoning

The court rejected the Plaintiff's submission that Section 107 preserves rights acquired under the RLA regardless of how they were acquired. It held that an inquiry into the process of acquisition remains available where circumstances require, and that the LRA, in force since May 2, 2012, governs the proceedings.

p. 8
03

Whether the Land Registrar acted unlawfully in cancelling the Plaintiff's title and issuing a new one to the 2nd Defendant

Holding

The Plaintiff's remedy, if aggrieved, was judicial review, which he did not pursue

Reasoning

The Land Registrar gazetted notice of the fraudulent acquisition and invited objections; the Plaintiff failed to challenge the gazette notice within the time given. The court held that if the Plaintiff believed the Registrar exceeded his powers, judicial review was the proper avenue.

Legal principles established

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  • Section 107 of the LRA does not provide blanket protection for rights acquired under the repealed RLA regardless of the propriety of the acquisition process
  • A party aggrieved by a Land Registrar's decision to issue a title after gazette notice ought to seek judicial review to quash the decision

Court orders

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  1. 1.The Plaintiff's claim is dismissed
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 107
  • Land Registration ActSection 14
  • Land Registration ActSection 79(2)
  • Registered Land Act (repealed)Section 143(1)
  • Registered Land Act (repealed)Section 35

Cases cited (3)

  • Pauline Nyambura Kariuki (Suing for and on behalf of the Estate of Samson Kariuki Mangae) v Karura Umoja Company Limited
    [2021] eKLR

    Requirement to prove fraud in the acquisition of share certificates for plots

  • Republic v Kisumu Lands Officer & Another
    [2010] eKLR

    Only a court of law can cancel a title

  • Dennis Noel Muhulo Ochwanda & Another v Elizabeth Murungari Njoroge & Another
    [2018] eKLR

    Requirement to strictly prove allegations of fraud

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land

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, "Gikonyo v Attorney General & another", Case Analysis (2022). Environment & Land Case 29 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14879/eng@2022-09-29

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