Opar v Odhiambo & 4 others (Environment and Land Case Civil Suit 174 of 2016) [2024] KEELC 5075 (KLR)
The bottom line
#The Environment and Land Court in Kisumu confirmed that a county council cannot 'repossess' land for unpaid rates, upholding the buyer's ownership and ordering eviction.
What this practically means
#Executive summary
#Key legal issues
#Lawful ownership of the suit property as between competing claimants
The Plaintiff, having acquired the property from Kidiruban the registered owner, is the lawful owner; the 1st and 2nd Defendants' title founded on the Council's purported repossession fails.
The suit property was leasehold with the Government of Kenya as lessor; the Council neither owned the property nor had power under the Rating Act to repossess it for rate default. Since the Council never invoked section 17 to sell the property, Kidiruban remained the owner and could validly transfer it to the Plaintiff. The Defendants' root of title from the Council thus failed, and they gave no convincing explanation of how they acquired the suit property through Erick Hongo.
Whether the alleged fraud against the Plaintiff, the 3rd and 4th Defendants was proved
Fraud was not proved; the Defendants could not both admit Kidiruban's ownership and allege its registration was fraudulent.
Having admitted the property was owned by Kidiruban and repossessed by the Council, the Defendants could not approbate and reprobate by alleging fraudulent registration. Kidiruban was not a party, and an unregistered copy of the lease did not show the original was unregistered. The charge in favour of the 3rd Defendant, though created while the suit was pending, was not shown to be fraudulent.
Whether the Plaintiff is entitled to the reliefs sought
Yes; the Plaintiff proved his case on a balance of probabilities and the Defendants are trespassers.
The Plaintiff demonstrated lawful acquisition from Kidiruban for Kshs. 2,000,000/- and registration as owner, and that the Defendants had no reasonable excuse for being on the land, rendering them trespassers liable to eviction and injunction.
Legal principles established
#- A rating authority has no power under the Rating Act to repossess or assume ownership of a rate defaulter's property; recovery must follow the process in section 17.
- Where two competing titles exist, the court must investigate the root of each title and uphold the one that conforms to procedure.
- A bona fide purchaser for value whose title is challenged must prove a valid and legal title, due diligence, and payment of valuable consideration.
Court orders
#- 1.A declaration that the Plaintiff is the lawful owner of the parcel of land known as Kisumu Municipality/Block 10/328
- 2.A permanent injunction restraining the 1st and 2nd Defendants from trespassing onto, developing, alienating, disposing of, or interfering with the Plaintiff's quiet and peaceful use and occupation of the suit property
- 3.An order of eviction of the 1st and 2nd Defendants, their agents, servants and/or employees from the suit property unless they vacate within 30 days
- 4.The 1st and 2nd Defendants' counter-claim is dismissed
- 5.The Plaintiff shall have the costs of the suit and the counter-claim
- 6.The 4th and 5th Defendants shall have the costs of the counter-claim
- 7.The 3rd Defendant shall bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opar v Odhiambo & 4 others (Environment and Land Case Civil Suit 174 of 2016) [2024] KEELC 5075 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5075/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.