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ELCDismissedMELC 68 of 2020 (Ruiru), Appeal from the Judgment delivered on 10/3/2022· [2023] KEELC 852 (KLR)

Gikera t/a Landluck Investment Limited v Ngugi & 4 others (Environment and Land Appeal E028 of 2022) [2023] KEELC 852 (KLR)

Environment and Land Court
13 February 2023
3,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed an appeal because the appellant's land titles were shown to be forged and had no valid register supporting them.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Thika against the judgment of Hon C K Kisiangani SRM in MELC 68 of 2020 (Ruiru) delivered on 10/3/2022. The Appellant, registered owner of Ruiru Kiu Block 2/2351 and 2/2766 which he claimed to have purchased from the 1st Respondent, had sued for injunction and eviction, alleging trespass. The 1st Respondent denied selling the suit lands, asserting the 2008 agreement covered only two ¼ acre plots, and counterclaimed with the 2nd Respondent (her purchaser) seeking declaration of ownership, cancellation of the Appellant's entries and an injunction, pleading fraud and forgery. The trial court allowed the counterclaim, declaring the 2nd Respondent absolute owner and restraining the Appellant, prompting this appeal. The Appellant filed no written submissions despite the court's directions, and the court proceeded on the record. Guided by the root-of-title approach in Hubert L Martin and the Munyu Maina principle, the court found the sale agreement forged on unchallenged handwriting evidence, that no register existed for the Appellant's titles which had been cancelled under Section 79 of the Land Registration Act following DCI investigations and criminal charges, and that the land now belonged to the 2nd Respondent. The court held the magistrate did not err, found no proof of trespass, upheld the costs award under Section 27 of the Civil Procedure Act, and dismissed the appeal with costs to the 1st and 2nd Respondents.

Key legal issues

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01

Ownership of the suit lands amid competing titles

Holding

The Appellant's titles were procured through forgery and fraud; the suit lands belong to the 2nd Respondent who acquired them from the 1st Respondent

Reasoning

The 1st Respondent sold only two ¼ acre plots to the Appellant under the November 11, 2008 agreement, which a documents examiner proved was forged. The Land Registrar testified there is no register for the suit lands and that the titles were cancelled under Section 79 of the Land Registration Act. The Appellant failed to show his transfer was recorded in the members' register, leaving his title 'floating in the air', while the 2nd Respondent's acquisition was supported by the register.

p. 6
02

Trespass claim against the Respondents

Holding

Failed, since the Appellant did not prove title to or possession of the suit lands

Reasoning

Having found the Appellant held no valid title, no lease and no lawful possession, the elements of trespass could not be established. The trial magistrate correctly dismissed the claim as the land had been divested from the Appellant and subdivided under the 2nd Respondent's registration.

p. 6
03

Costs of the counterclaim

Holding

The trial court properly awarded costs to the 1st and 2nd Respondents as successful counterclaimants

Reasoning

Under Section 27 of the Civil Procedure Act costs follow the event unless the court for good reason orders otherwise. The 1st and 2nd Respondents prevailed on their counterclaim, so the award of costs was a proper exercise of discretion with no ground to fault it.

p. 7
04

Meaning of 'Right of Appeal explained' order

Holding

The order simply recorded that the Appellant's right of appeal was explained at delivery of the judgment; nothing turns on it

Reasoning

The Appellant complained that the order 'R/A explained' was not understandable. The court held a judgment should be self-explanatory but found this order was a routine notation that the right of appeal had been explained, and no error arose from it.

p. 7

Legal principles established

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  • Where two or more titles exist over the same land, the court must investigate the root of title and uphold the title that conforms to procedure and traces its root without a break
  • A registered proprietor whose root of title is under challenge must prove the legality of acquisition beyond merely producing the title instrument
  • Title acquired through fraud, illegality or corrupt scheme is not protected under Article 40(6) of the Constitution and may be impugned under Section 26 of the Land Registration Act

Court orders

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  1. 1.The appeal is dismissed with costs in favour of the 1st and 2nd Respondents
  2. 2.The judgment of the trial court delivered on 10/3/2022 is upheld (appeal found to have no merit)

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure ActSection 27
  • Land Registration ActSection 26
  • Land Registration ActSection 79
  • Land ActSection 7
  • Constitution of KenyaArticle 40(6)

Cases cited (3)

  • Gitobu Imanyara & 2 Others Vs Attorney General
    [2016] eKLR
  • Hubert L Martin & 2 others Vs Margaret Kamar & 5 Others
    (2016) eKLR
  • Munyu Maina Vs Hiram Gathiha Maina
    [2013] eKLR
On appeal from
Senior Resident Magistrate's Court, Ruiru
MELC 68 of 2020 – Ruiru
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act

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, "Gikera t/a Landluck Investment Limited v Ngugi & 4 others (Environment and Land Appeal E028 of 2022) [2023] KEELC 852 (KLR)", Case Analysis (2023). MELC 68 of 2020 (Ruiru), Appeal from the Judgment delivered on 10/3/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/852/eng@2023-02-13

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