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ELCPartially Allowed(not stated in the excerpt provided)· [2024] KEELC 5208 (KLR)

Indakwa & another v Koech (Environment & Land Case 122 of 2013) [2024] KEELC 5208 (KLR)

Environment and Land Court
15 July 2024
MOM. A. Odeny
6,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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The Nakuru Environment and Land Court cancelled a landowner's title because he could not explain how he got it, handing the land to earlier purchasers.

What this practically means

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Executive summary

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The plaintiffs, successors in interest through a 1992 land exchange agreement with Kipkemoi Arap Siele, sued the defendant seeking a permanent injunction and cancellation of the defendant's title to Njoro/NjoroBlock 4/206 and related parcels at Belbur Farm, Njoro. The defendant, Sonoiya Arap Kositany, held a title issued in 2000 and reissued in 2006 through advocate Richard Machage, and counterclaimed for a declaration of ownership and eviction. The court found that the 1992 exchange agreement was valid, corroborated by written agreements, receipts, and the Belbur company register which listed Siele as member No. 34 for plot 206. Applying Hubert L. Martin and the first-in-time principle from Wreck Motors and Gitwany Investment, the court held that the plaintiffs' 1995 title was earlier and properly traced to its root, while the defendant failed to explain the root of his later title; two parallel parcel files had been opened fraudulently, leaving the defendant with a shell title. The defendant had also left the land in Siele's care for decades and never took steps against the plaintiffs' occupation. The court invoked sections 26(1) and 80(1) of the Land Registration Act to cancel the defendant's title and rectify the register in favour of the plaintiffs. The suit was allowed with the counterclaim dismissed; permanent injunction and cancellation orders were issued, with costs and interest to the plaintiffs.

Key legal issues

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01

Validity of the 1992 exchange agreement

Holding

The court found a valid exchange agreement existed between the 2nd plaintiff and Kipkemoi Arap Siele, corroborated by witnesses, payment of receipts, and issuance of titles in 1995 with continued possession.

Reasoning

PW1 testified that during the 1992 clashes he agreed with Siele to exchange his Kipkelion plots for Siele's Belbur land. Written agreements of 26th September and 3rd October 1992 were produced, payments were made through Belbur's offices and Bomet Fraser Advocate, and titles issued on 17th March 1995. Other witnesses including the company's former secretary corroborated the exchange and long possession.

p. 9
02

Root of title of competing titles to plot 206

Holding

The plaintiffs traced their title to the 1992 exchange and registration, while the defendant failed to explain the root of his 2000/2006 title; the earlier plaintiffs' title prevails.

Reasoning

Relying on Hubert L. Martin and Wreck Motors, the court compared the two titles. The plaintiffs' title issued in 1995 traced to the exchange agreement and the company register listing Siele as member No. 34. The defendant's title issued in 2000 and reissued in 2006 through advocate Machage without production of a register; the court found parallel parcel files opened fraudulently, leaving the defendant with a shell title.

p. 11
03

Whether the defendant proved his counterclaim

Holding

The counterclaim failed; the defendant did not discharge the burden of proving fraud against the plaintiffs and did not take steps against them despite being aware of their occupation.

Reasoning

DW1 admitted the plaintiffs occupied the land before he charged it in 2006 but never sued them or sought eviction or damages. He did not explain the root of his title or produce the register from which his title issued. The court found he failed to discharge the evidentiary burden, citing Narriman A. Khan and Munyu Maina.

p. 11

Legal principles established

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  • When faced with two competing titles over the same parcel, the court must investigate the root of each title and the title which conforms to procedure and traces its root without a break will be upheld.
  • Where two competing titles exist, the first in time prevails.
  • A registered proprietor whose root of title is under challenge must prove the legality of how he acquired the title, beyond merely producing the title instrument.
  • Under section 26(1) of the Land Registration Act, a certificate of title is prima facie evidence of ownership but may be challenged on grounds of fraud, misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme.

Court orders

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  1. 1.A permanent injunction restraining the defendant, his agents and employees from entering, advertising for sale or disposing of Njoro/NjoroBlock 4/206
  2. 2.Cancellation of the title issued to the defendant and amendment of the Register to reflect Nancy Wacheke Indakwa as owner of Njoro/NjoroBlock 4/206, Simon Mbote Kariuki as owner of Njoro/NjoroBlock 4/270 (Belbur) and holding in trust Njoro/NjoroBlock 4/271 for the late Wanjiro Waithema children, and Teresia Njeri Karanja holding Njoro/NjoroBlock 4/272 in trust for the late Wachera Wanjiku Kariuki's beneficiaries
  3. 3.Dismissal of the defendant's counterclaim with costs
  4. 4.Costs of suit and interest to the plaintiffs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24
  • Land Registration ActSection 25
  • Land Registration ActSection 80(1)
  • Evidence ActSection 107
  • Evidence ActSection 108
  • Civil Procedure RulesOrder 2 Rule 10(1)

Cases cited (10)

  • Hubert L. Martin & 2 others v Margaret J. Kamar & 5 others
    [2016] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • M' Mugwika M' Rugongo v Settlement Fund Trustee & another
    [2022] eKLR
  • Vijay Morjara vs Nausingh Maddhusing Darbar & another
    [2000] eKLR
  • William Kabogo Gitau vs George Thuo & 2 others
    [2010] 1 KLR 526
  • Palace Investment Ltd vs Geoffrey Kariuki Mwenda & another
    [2015] eKLR
  • Wreck Motors Enterprises vs. The Commissioner of Lands and Others
    Civil Appeal No. 71 of 1997
  • Gitwany Investment ltd vs. Tajmal Ltd & 3 Others
    (2006) eKLR
  • Narriman A. Khan v Ramadhan Hamisi & 2 others
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land title and registration disputes

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, "Indakwa & another v Koech (Environment & Land Case 122 of 2013) [2024] KEELC 5208 (KLR)", Case Analysis (2024). (not stated in the excerpt provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5208/eng@2024-07-15

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