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ELCPartially AllowedBusia ELC Case Nos. 161 of 2014, 91 of 2013, 99 of 2019 and 86 of 2017 (Consolidated)· [2024] KEELC 3630 (KLR)

Kevin Morris Wasike Matumbayi & Others v Gabriel Muindi Simiyu & Others (Consolidated Suits)

Environment and Land Court
7 May 2024
AOA. Omollo
8,893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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A Busia court confirmed that land titles are co-owned as registered, and only one neighbour among several proved encroachment, with each side paying its own costs.

What this practically means

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Executive summary

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Four Environment and Land Court suits at Busia concerning parcels in Bukhayo/Lupida were consolidated because the subject lands were related. Kevin Morris Wasike Matumbayi claimed he, Desterio Barasa Ondwasi Kulundu and Joseph Wanjala jointly bought 12 acres from Clement Ekasiba and sought eviction of trespassers; Desterio claimed he alone bought the whole of parcel 1979 and sued five neighbours for encroachment; Gabriel Muindi Simiyu claimed Desterio trespassed on his parcel 2491; and Kevin separately sued Abdalla Tabata over parcel 3210. The court framed five issues centring on proprietorship of parcel 1979 and alleged trespass. Applying section 26 of the Land Registration Act, the court held that a certificate of title is prima facie evidence of proprietorship challengeable only on pleaded and strictly proved fraud, which Desterio failed to establish; parcel 1979 is therefore co-owned by the three named proprietors. On encroachment, the court analysed the survey reports, green cards and mutation forms and found that the subdivision of L.R. 2302 inflated its size (a 'computed area 4.0ha'), causing parcel 2491 to overlap approximately 0.30ha onto parcel 3210 (formerly part of 1979). Encroachment claims against Asumani Mbayi, Benjamin Otyang'a and Abdalla Tabata were dismissed for want of proof, as was Gabriel's claim against Desterio. Judgment was entered only against Gabriel Muindi Simiyu; boundaries between 1979 (3210) and 2491 are to be restored by the Busia County Land Registrar and Surveyor; a permanent injunction issued against Gabriel and Jacob Ekasiba; each party bears their own costs.

Key legal issues

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01

Whether Desterio was sole proprietor of Bukhayo/Lupida/1979

Holding

No - the land is registered in the names of Desterio, Kevin Morris Wasike and Joseph Wanjala; Desterio failed to prove fraud in the registration.

Reasoning

Desterio alleged the transfer into three names was fraudulent but never specifically pleaded or proved fraud, and never sued Kevin and Joseph for the relief of removing them. The title produced showed registration in three names, and the 2005 sale agreement showed all three purchased portions. His claim to sole ownership failed.

p. 12
02

Whether the Defendants trespassed onto Bukhayo/Lupida/1979

Holding

Encroachment found only against Gabriel Muindi Simiyu (parcel 2491), approximately 0.30ha; claims against Asumani Mbayi, Benjamin Otyang'a and Abdalla Tabata dismissed.

Reasoning

Analysis of the green cards, mutation forms and Registry Index Map showed parcel 2491 traced to L.R. 787/2302 whose size was inflated at subdivision ('computed area 4.0ha'), causing overlap onto parcel 3210. No anomaly was shown for parcels 2305 and 2306 as the survey report did not compare ground positions with the mutations creating those titles.

p. 15
03

Whether Desterio trespassed onto Gabriel's parcel 2491

Holding

Claim dismissed - Gabriel did not prove the extent of the encroachment, and his own title was problematic.

Reasoning

Gabriel's defence was purely a boundary/encroachment claim. The court found the document creating his land was defective and that he led no evidence proving the extent of any encroachment by Desterio; his claim therefore failed in totality.

p. 15

Legal principles established

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  • A certificate of title is prima facie evidence of proprietorship but may be challenged where acquired fraudulently, unprocedurally or through corrupt practice; allegations of fraud must be strictly proved by the person alleging.
  • The Land Registrar is the first point of contact for resolution of boundary disputes over registered land under general boundaries under section 18 of the Land Registration Act.

Court orders

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  1. 1.Judgment entered for the plaintiffs in ELC Case Nos. 161 of 2014, 99 of 2019 and 86 of 2017 only as against Gabriel Muindi Simiyu, registered owner of L.R. No. Bukhayo/Lupida/2491, with encroachment extent of 0.30ha per the survey report dated 10th June 2021
  2. 2.Claim of encroachment against Asumani Mbayi, Benjamin Otyanga and Abdala Tabata dismissed
  3. 3.Gabriel Muindi Simiyu's claim in ELC Case No. 91 of 2013 against Desterio Kulundu Barasa Ondwasi for encroachment onto Bukhayo/Lupida/2491 dismissed
  4. 4.Declaration that L.R. number Bukhayo/Lupida/1979 is co-owned by Desterio Kulundu Barasa Ondwasi, Kevin Morris Wasike Matumbayi and Joseph Wanjala Adedi until the process of subdivision is complete
  5. 5.Busia County Land Registrar in conjunction with County Land Surveyor directed to visit the suit parcels and restore the boundaries between L.R. No. 1979 (3210) and L.R. No. 2491
  6. 6.Permanent injunction issued to the plaintiffs (Desterio Kulundu Barasa Ondwasi and Kevin Morris Wasike Matumbayi) against Gabriel Muindi Simiyu and Jacob Etyang' Ekasiba, their representatives or persons claiming through them, from interfering with possession of L.R. No Bukhayo/Lupida/1979 and any numbers arising from it
  7. 7.Each party to bear their respective costs of the consolidated suits

Authorities

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Legislation

  • Land Registration Actsections 24, 26
  • Land Registration Act, No. 12 of 2012section 18(1),(2),(3); section 19(3); section 20
  • Registered Land Act (repealed)sections 27, 28
  • Registration of Titles Act (repealed)section 23
  • Survey ActCap. 299
  • Civil Procedure RulesOrder 2 rule 4
  • Land Adjudication Actnot specified

Cases cited (10)

  • Republic Vs. Land Registrar Taita Tavett District & Another
    (2015) EKLR
  • Moya Drift Farm Ltd Vs. Theuri
    (1973) EA 114
  • Park View Shopping Arcade Vs. Kangethe & 2 Others
    (KLR) E&L 592
  • Koinange & 13 Others Vs. Charles Karuga Koinange
    (1986) KLR
  • Vijay Morjaria Vs. Nansingh Madhusingh Darbar & Another
    (2000) eKLR, Civil Appeal No. 106 of 2000
  • Prafulla Enterprises Limited Vs. Norlake Investments Limited & Another
    (2014) EKLR
  • Kingori Vs. Chege & 3 Others
    (2002) 2 KLR 243
  • Embakasi Properties Limited & Another Vs. Commissioner Of Lands & Anor
    [2019] eKLR
  • George Kamau Macharia Vs. Dexka Limited
    [2019] EKLR
  • Azzuri Limited Vs. Pink Properties Limited
    [2018] EKLR; [2017] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); consolidated suits concerning registered land parcels Bukhayo/Lupida

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, "Kevin Morris Wasike Matumbayi & Others v Gabriel Muindi Simiyu & Others (Consolidated Suits)", Case Analysis (2024). Busia ELC Case Nos. 161 of 2014, 91 of 2013, 99 of 2019 and 86 of 2017 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3630/eng@2024-05-07

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