Kibunja v Kuria & another (Environment and Land Appeal E008 of 2023) [2024] KEELC 4544 (KLR)
The bottom line
#A Kenyan court threw out a trespass and eviction claim because the landowner's title came from a seller convicted of fraudulently obtaining it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant is a trespasser on land parcel Mau Narok/Siapei Block 3/520 (Mutukanio 'A')
The Appellant is not a trespasser; the 1st Respondent did not acquire good title because his vendor Gerishon Gioche Macharia had been convicted of fraudulently obtaining the title over the same parcel, so the root of the 1st Respondent's title was impeached.
The court noted the conviction of Gerishon Gioche Macharia in Nakuru CM Criminal Case No 2956 of 2006 for obtaining execution of security by false pretense relating to the suit parcel, which conviction was never set aside. The 1st Respondent purchased from that vendor in 2016. Applying the principle that trespass protects possessory rights and that a tainted title cannot be indefeasible, the court held the Appellant not a trespasser.
Who should bear the costs of the appeal
Costs follow the event under Section 27 of the Civil Procedure Act; the successful Appellant is awarded the costs of the appeal.
The court applied the general rule that a successful party should ordinarily be awarded costs unless the court, for good reason, directs otherwise. Having allowed the appeal, the Appellant was awarded costs of the appeal, and the underlying suit was dismissed with costs.
Legal principles established
#- Trespass is an injury to a possessory right; a claimant in trespass must have been in possession, a mere right of property without possession being insufficient.
- A title whose root is tainted by fraud or criminal illegality is not indefeasible under Section 26 of the Land Registration Act and cannot found a claim in trespass.
Court orders
#- 1.The appeal is allowed.
- 2.The judgment of the Chief Magistrate's Court at Nakuru delivered by Hon. R. Kefa on 1st March 2023 in Nakuru C.M. E.L.C Case No 59 of 2019 is set aside and substituted with this court's judgment that the suit is dismissed with costs.
- 3.The costs of the Appeal are awarded to the Appellant.
- On appeal from
- Chief Magistrate's Court at Nakuru (C.M. ELC Case No 59 of 2019)
- 59 of 2019
- Jurisdiction invoked
- First appeal from the subordinate court to the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibunja v Kuria & another (Environment and Land Appeal E008 of 2023) [2024] KEELC 4544 (KLR)", Case Analysis (2024). Nakuru C.M. E.L.C Case No 59 of 2019 (appeal against judgment of Hon. R. Kefa dated 1st March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4544/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.