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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 5075 (KLR)

Opar v Odhiambo & 4 others (Environment and Land Case Civil Suit 174 of 2016) [2024] KEELC 5075 (KLR)

Environment and Land Court
4 July 2024
7,879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued the 1st and 2nd Defendants seeking a declaration that he is the absolute owner of Kisumu/Municipality/Block 10/328, a permanent injunction, and eviction, having purchased the property from Kidiruban Housing Cooperative Society Limited in 2016 and taken a loan secured by a charge in favour of the 3rd Defendant. The 1st and 2nd Defendants claimed they acquired the property through Erick Hongo after the Municipal Council of Kisumu allegedly repossessed it from Kidiruban for unpaid rates in 2007, and counter-claimed for a declaration of bona fide ownership, cancellation of the Plaintiff's title and discharge of the charge, later adding the Land Registrar and Attorney General. The court framed four issues, principally who between the Plaintiff and the 1st and 2nd Defendants is the lawful owner. Applying the principle that competing titles must be traced to their roots, the court held the property was leasehold with the Government of Kenya as lessor; the Council neither owned it nor had any power under section 17 of the Rating Act to 'repossess' it for rate default. Kidiruban therefore remained owner and validly transferred the property to the Plaintiff. The Defendants' root of title failed, their explanation of acquisition was unconvincing, and their fraud allegations were unproved, the court holding they could not approbate and reprobate. Judgment was entered for the Plaintiff with a declaration of ownership, permanent injunction, and eviction within 30 days unless the Defendants vacated. The counter-claim was dismissed. The Plaintiff received costs of the suit and counter-claim, the 4th and 5th Defendants received costs of the counter-claim, and the 3rd Defendant, having taken the charge while the suit was pending, was denied costs and ordered to bear its own.

Key legal issues

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01

Lawful ownership of the suit property as between competing claimants

Holding

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.

Reasoning

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.

p. 13
02

Whether the alleged fraud against the Plaintiff, the 3rd and 4th Defendants was proved

Holding

Fraud was not proved; the Defendants could not both admit Kidiruban's ownership and allege its registration was fraudulent.

Reasoning

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.

p. 12
03

Whether the Plaintiff is entitled to the reliefs sought

Holding

Yes; the Plaintiff proved his case on a balance of probabilities and the Defendants are trespassers.

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.A declaration that the Plaintiff is the lawful owner of the parcel of land known as Kisumu Municipality/Block 10/328
  2. 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. 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. 4.The 1st and 2nd Defendants' counter-claim is dismissed
  5. 5.The Plaintiff shall have the costs of the suit and the counter-claim
  6. 6.The 4th and 5th Defendants shall have the costs of the counter-claim
  7. 7.The 3rd Defendant shall bear its own costs

Authorities

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Legislation

  • Registered Land Act (repealed), Chapter 300 Laws of KenyaSections 27 and 28
  • Land Registration Act 2012Sections 24, 25, 26 and 80
  • Rating Act, Chapter 267 Laws of KenyaSection 17
  • Constitution of Kenya 2010Article 40 (and 40(6))
  • Repealed Constitution of KenyaSection 75
  • Civil Procedure ActNot specified (rules made thereunder referenced)

Cases cited (4)

  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Adan Abdirahani Hassan & 2 others v. Registrar of Titles & 2 others
    [2013] eKLR
  • Samuel Kamere v. Land Registrar Kajiado
    Civil Appeal No. 28 of 2005
  • Kidiruban Housing Cooperative Society Limited v. Municipal Council of Kisumu (Kisumu HCCC No. 152 of 2007, now ELC No. 804 of 2015)
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

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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, "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.