Auko v Oyoo (Environment and Land Appeal E034 of 2021) [2023] KEELC 760 (KLR)

The court applied Section 28(b) of the Land Registration Act and the Supreme Court's five elements of customary trust in M'Inanga. It examined the pleadings and found the defence merely stated the land was ancestral, without pleading trust. No Green Card, birth certificate or Chief's letter was produced to show the land was family or clan land or the Appellant's membership of the family. Applying section 107 of the Evidence Act, the claim failed for want of proof.

The Respondent produced a copy of the Title Deed (Pexh 1) and Certificate of Official Search (Pexh 2) as undisputed evidence of ownership. Section 26 of the Land Registration Act renders a certificate of title prima facie evidence of absolute and indefeasible ownership, rebuttable only by fraud or misrepresentation. The Appellant adduced no proof of fraud, so the title stood and the Respondent was declared absolute owner.

Applying Section 3(1) of the Trespass Act, the court noted the Appellant had built and occupied part of the land. He alternately claimed permission from the Respondent and entitlement as a beneficiary of Okumu Opundo's estate. Since customary trust failed and no evidence of permission was adduced by the Appellant or DW2, there was no reasonable excuse or justification for continued occupation, sustaining the eviction and injunction orders of the trial court.

Guided by Selle v Associated Motor Boat Co, the court reappraised the trial record and the rival claims on customary trust, ownership and trespass. Having found no merit in the Appellant's claims on re-evaluation, it concluded the magistrate had exercised his discretion properly and declined to disturb the judgment allowing the Respondent's claim with permanent injunction and eviction.