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ELCPartially AllowedELC Case at Malindi (Plaint dated 20th July 2023)· [2024] KEELC 6345 (KLR)

Katana v Karisa Chongo Mleka aka Karisa Mleko Chengo & 6 others (Environment & Land Case E005 of 2023) [2024] KEELC 6345 (KLR)

Environment and Land Court
30 September 2024
MNMwangi Njoroge
1,302 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Malindi cancelled five fraudulently created land subdivisions, confirming that titles created while a ownership suit was pending will not survive.

What this practically means

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Executive summary

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The plaintiff sued seeking declaration that five parcels (Kilifi/Mbaraka Chembe/1110, 1111, 1188, 1189 and 1190) registered in the names of the 2nd to 7th Defendants were fraudulently acquired, cancellation of the subdivisions emanating from Plot No. Kilifi/Mbaraka Chembe/379, issuance of the original title deed to him, a permanent injunction against interference, mesne profits and costs. His case was that he bought six acres from Lewa Chongo Mleka and Lwembe Chongo Mleka by agreement dated 10th September 1986, pursued succession through the Public Trustee, and obtained judgment in ELC No. 192 of 2014 (OS) on 21st March 2023 vesting the suit property in him. Upon seeking to register the decree he discovered the subdivisions, with titles issued between 19th April 2021 and 6th January 2022 during the pendency of that suit. The suit proceeded undefended despite service; only the plaintiff testified. The court framed two issues: whether the plaintiff proved ownership, and whether the subdivisions should be cancelled. Relying on Section 107(1) of the Evidence Act and Section 26(1) of the Land Registration Act, the court found the prior judgment vested the property in the plaintiff and had not been appealed or set aside. Since the defendants offered no proof of a valid acquisition process, the subdivisions were held fraudulently acquired and the titles null and void. Prayers A, B, C, D and F were granted; mesne profits were declined for lack of proof. Costs were awarded to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved ownership of Plot No. Kilifi/Mbaraka Chembe/379

Holding

The plaintiff proved ownership through the judgment in ELC No. 192 of 2014 (OS) delivered on 21st March 2023, which vested the suit property in him and which was not appealed or set aside

Reasoning

The court perused the prior judgment of Lady Justice Odeny and found it dealt with ownership and vested the property in the plaintiff. Since that judgment had not been appealed against or set aside, the plaintiff's ownership stood established. The suit property therefore vested in the plaintiff upon determination of the earlier suit.

p. 3
02

Whether the five subdivisions were fraudulently acquired

Holding

The subdivisions were fraudulently acquired and the resulting titles null and void, as the defendants failed to demonstrate any valid process of acquisition during the pendency of the earlier suit

Reasoning

The titles were issued between 19th April 2021 and 6th January 2022 while ELC No. 192 of 2014 (OS) was pending. The defendants, though served, did not attend to explain the transfer process. In the absence of proof of a valid acquisition process, the court found fraud and ordered cancellation of the titles.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be impeached on grounds of fraud, misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme under Section 26(1) of the Land Registration Act
  • A party who asserts facts constituting a legal right bears the burden of proving those facts under Section 107(1) of the Evidence Act

Court orders

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  1. 1.Declaration that parcels Kilifi/Mbaraka Chembe/1110, 1111, 1188, 1189 and 1190 were fraudulently acquired
  2. 2.Mandatory injunction cancelling all subdivisions emanating from Plot No. Kilifi/Mbaraka Chembe/379
  3. 3.Mandatory injunction compelling the Kilifi County Land Registrar to register and issue the plaintiff with the original title deed to Plot No. Kilifi/Mbaraka Chembe/379
  4. 4.Permanent injunction restraining the defendants from interfering with the plaintiff's occupation of Plot No. Kilifi/Mbaraka Chembe/379
  5. 5.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Evidence ActSection 107(1)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Serraco Limited v Attorney General
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited 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, "Katana v Karisa Chongo Mleka aka Karisa Mleko Chengo & 6 others (Environment & Land Case E005 of 2023) [2024] KEELC 6345 (KLR)", Case Analysis (2024). ELC Case at Malindi (Plaint dated 20th July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6345/eng@2024-09-30

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