Gikera t/a Landluck Investment Limited v Ngugi & 4 others (Environment and Land Appeal E028 of 2022) [2023] KEELC 852 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Ownership of the suit lands amid competing titles
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
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.
Trespass claim against the Respondents
Failed, since the Appellant did not prove title to or possession of the suit lands
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.
Costs of the counterclaim
The trial court properly awarded costs to the 1st and 2nd Respondents as successful counterclaimants
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.
Meaning of 'Right of Appeal explained' order
The order simply recorded that the Appellant's right of appeal was explained at delivery of the judgment; nothing turns on it
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs in favour of the 1st and 2nd Respondents
- 2.The judgment of the trial court delivered on 10/3/2022 is upheld (appeal found to have no merit)
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.