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ELCDismissedAppeal dated 23rd August 2023 (Memorandum of Appeal)· [2024] KEELC 4889 (KLR)

Dikir v Singalo (Suing On Behalf Of The Estate of the Late Omoding Ole Reteti) & 3 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 4889 (KLR)

Environment and Land Court
20 June 2024
EWEmmanuel M. Washe
8,269 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that a title obtained by tampering with land adjudication records can be cancelled, even if you hold the registration document.

What this practically means

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Executive summary

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The Appellant appealed against the judgment and decree of Hon. Hellen C. Maritim, Senior Resident Magistrate, delivered on 8th August 2023, in which the 1st Respondent (suing under letters ad litem on behalf of the estate of his late father, Omonding Ole Reteti) had obtained cancellation of the Appellant's title to LR.No.Transmara/Nkararo/479. The trial court had found that an objection under Section 26 of the Land Adjudication Act, Cap 284, determined on 02.04.2014, declared the property to belong to the 1st Respondent's father's estate; the Appellant's name was thereafter unlawfully reinstated in the Adjudication Record in 2020 without any appeal to the Minister, and the resulting title was fraudulent. On appeal, the ELC at Kilgoris, per Emmanuel M. Washe J, framed five issues. It held that the objection proceedings were genuine; that the 1st Respondent, as the son of the deceased objector, could represent his father without letters of administration since adjudication objections are an internal dispute resolution mechanism outside the Civil Procedure Rules; that after the 2014 determination the adjudication officer's jurisdiction was spent and only a Ministerial appeal under Section 29 could alter the record; and that the Appellant's reinstatement and resulting title were irregular, illegal and fraudulent, attracting the Section 26 Land Registration Act exceptions to indefeasibility. All five grounds of appeal failed. The court upheld the trial judgment in its entirety, dismissed the Memorandum of Appeal, and ordered the Appellant to bear the costs of the appeal.

Key legal issues

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01

Genuineness and legitimacy of the objection proceedings

Holding

The objection proceedings were genuine; the 1st Respondent properly represented his deceased father's objection, and the certified proceedings were presumed genuine and verified by the 3rd Respondent.

Reasoning

Objection proceedings under Section 26 of the Land Adjudication Act are an internal dispute resolution mechanism outside the Civil Procedure Rules, so no ad litem grant was required. The Appellant participated throughout without raising the issue of representation, making her later objection an afterthought. Section 83 of the Evidence Act created a presumption of genuineness of the certified proceedings, confirmed by the 3rd Respondent who produced the records.

p. 15
02

Lawful owner of Plot No.479 / LR.No.Transmara/Nkararo/479

Holding

The 1st Respondent (per the 02.04.2014 objection determination in favour of the estate of Omonding Ole Reteti) is the rightful owner.

Reasoning

After the objection determination of 02.04.2014 the adjudication officer's jurisdiction was spent; only an appeal to the Minister under Section 29 within 60 days could disturb it. The Appellant filed no such appeal, so the second reinstatement of her name had no proceedings supporting it and was irregular, illegal and fraudulent. The 3rd Respondent's own officer confirmed the cancellation was improper and beyond mandate.

p. 16
03

Validity of the Appellant's title

Holding

The title was unlawfully registered and is cancelled as it was procured illegally, unprocedurally and fraudulently, falling within the Section 26 Land Registration Act exceptions.

Reasoning

Section 26 of the Land Registration Act makes a title prima facie and indefeasible but subject to challenge on grounds of fraud/misrepresentation or where the title was acquired illegally, unprocedurally or through a corrupt scheme. The Appellant altered the Adjudication Record using non-existent proceedings to process the title, so her registration is annulled.

p. 18
04

Entitlement to the prayers in the Plaint

Holding

All substantive prayers were granted: cancellation of the Appellant's title, registration of the 1st Respondent, and a permanent injunction.

Reasoning

Having found the title fraudulent, the Court directed that the suit property be registered in the 1st Respondent's name consistent with the 02.04.2014 objection determination, and under Section 24 of the Land Registration Act ownership vests in the registered proprietor to the exclusion of others, justifying a permanent injunction against the Appellant.

p. 18

Legal principles established

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  • A first appellate court must re-evaluate the evidence and arrive at its own independent conclusion.
  • Objection proceedings under Section 26 of the Land Adjudication Act are an internal dispute resolution mechanism not governed by the Civil Procedure Rules, and a son may represent his deceased father's objection without letters of administration.
  • Once an objection under the Land Adjudication Act is determined, the adjudication officer becomes functus officio and only a Ministerial appeal under Section 29 can alter the record.
  • A title acquired illegally, unprocedurally or through fraud is liable to cancellation notwithstanding Section 26 of the Land Registration Act.

Court orders

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  1. 1.The Memorandum of Appeal dated 23.04.2023 be and is hereby dismissed
  2. 2.The Judgement and Decree of Hon. Hellen C. Maritim, SRM delivered on 08.08.2023 is upheld in its entirety
  3. 3.The Appellant will bear the costs of the Appeal

Authorities

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Legislation

  • Land Adjudication Act, Cap 284Section 26
  • Land Adjudication Act, Cap 284Section 29
  • Land Adjudication Act, Cap 284Section 30
  • Civil Procedure Rules, 2010Order 22 Rule 51 (also referred to as Order 21 Rule 51)
  • Evidence Act, Cap 80Section 83
  • Land Registration Act, No. 3 of 2012Section 26
  • Land Registration Act, No. 3 of 2012Section 24
  • Constitution of Kenya, 2010Article 40
  • Civil Procedure Act, Cap 21generally

Cases cited (1)

  • Selle & Another v Associated Motor Boat Co Ltd & Others
    (1968) EA 123
On appeal from
Senior Resident Magistrate's Court (ELC, Kilgoris)
Jurisdiction invoked
First appellate jurisdiction over the judgment and decree of the Senior Resident Magistrate delivered on 08.08.2023

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, "Dikir v Singalo (Suing On Behalf Of The Estate of the Late Omoding Ole Reteti) & 3 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 4889 (KLR)", Case Analysis (2024). Appeal dated 23rd August 2023 (Memorandum of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4889/eng@2024-06-20

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