Imbisi v Akhura & 2 others (Environment & Land Case 372 of 2013) [2024] KEELC 252 (KLR)
The bottom line
#The court dismissed a landowner's fraud claim against a registered titleholder and ordered the claimant to vacate the land within ninety days.
What this practically means
#Executive summary
#Key legal issues
#Whether Adriano proved fraud, corruption or want of procedure in the creation of Akhura's title to Idakho/Shivakala/2146
No; no particulars of fraud or corruption were pleaded and the unimpeached succession ruling and confirmation of grant of 2015 stand in the way of the allegations
Fraud and corruption are serious allegations of a criminal nature requiring strict proof to an elevated standard. Adriano's amended plaint contained no particulars of fraud or corruption. Further, Akhura was registered pursuant to a succession order and confirmation of grant which remain in force; Adriano showed no revocation of those instruments, and an earlier fraud attack in that succession cause had failed.
Whether Akhura is entitled to eviction and permanent injunction against Adriano
Yes; as registered proprietor entitled to the rights under Section 24 of the Land Registration Act, and Adriano admitted occupation and use
Akhura testified that Adriano built a small house on the suit property and was forcefully using it; Adriano's own testimony corroborated that he had occupied, used and developed the land. As registered proprietor, Akhura is entitled to the rights, privileges and benefits of proprietorship and thus to the eviction and permanent injunction relief claimed in CMELC No. 926 of 2018.
Whether mesne profits from 2013 are payable to Akhura
No; the claim fails for want of proof of quantum
Mesne profits are the profits of an estate received by a tenant in wrongful possession between entry and departure. They must be pleaded and proved. No evidence was offered to guide the court as to quantum, so the prayer fails despite Akhura's entitlement to possession.
Legal principles established
#- A party alleging fraud must plead it, particularise it, and strictly prove it to a standard higher than the balance of probabilities but lower than beyond reasonable doubt
- A registered proprietor is entitled to the rights, privileges and benefits under Section 24 of the Land Registration Act, and a certificate of title is conclusive evidence of proprietorship unless the Section 26 provisos are established
- Mesne profits must be pleaded and proved
Court orders
#- 1.Adriano Muhandichi Imbisi's case in ELCC No. 372 of 2013 is dismissed
- 2.Adriano Muhandichi Imbisi to vacate land parcel number Idakho/Shivakala/2146 within ninety (90) days from the date of delivery of the judgment, in default Peter Shikunzi Akhura shall be at liberty to evict him
- 3.A permanent injunction restraining Adriano Muhandichi Imbisi, his agents and servants from entering, occupying, or trespassing upon land parcel number Idakho/Shivakala/2146 upon his vacating or upon expiry of ninety (90) days
- 4.Peter Shikunzi Akhura shall have costs of the consolidated cases, to be borne by Adriano Muhandichi Imbisi
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Imbisi v Akhura & 2 others (Environment & Land Case 372 of 2013) [2024] KEELC 252 (KLR)", Case Analysis (2024). ELCC No. 372 of 2013 (consolidated with Kakamega CMELC No. 926 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/252/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.