James Brown Mbasu v Stephen Werangai Tali & another [2021] KEELC 2443 (KLR)

as per the family resolution with the main view of advocating for peace between them. That PW1 and PW2 did not like it when he married his second wife and have became violent to her. That he has 13 children in total and his daughters also need to inherit. That the 5 acres left belong to him and his children. DW2, the 1 st defendant confirms he bought the land from the 2 nd defendant. They exchanged the parcels of land and he added some money. As per the agreement (DEx1) he paid in full and got his title. This court has carefully considered the evidence and submissions therein. The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows: “Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” Section 26 (1) of the Land Registration Act states as follows: “The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except – a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” The law is clear that, the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except – On the ground of fraud or misrepresentation to which the person is proved to be a party; or Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. This court in considering this matter referred to the case of Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another (2013) eKLR where the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. The court in the case while considering the application of section 26(1) (a) and (b) of the Land Registration Act rendered himself as follows:- “--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.” It is not in dispute that the parcel of land known as S/Kabras/Bushu/4094 is registered in the name of the 1 st defendant. The plaintiff testified that the 2nd defendant his father, was the registered owner of whole that parcel of land better known as L.R. No. S/Kabras/Bushu/941. That in the year 2011, the 2nd defendant allocated the plaintiff a portion of land measuring approximately 3 acres and/or thereabouts as a gift comprised in that parcel of land better known as L.R. No. S/Kabras/Bushu/941. That on or about the 18 th day of May, 2015, the 1 st and 2nd defendant jointly and severally subdivided and/or caused to be subdivided the parcel of land better known as L.R. No. S/Kabras/Bushu/941 creating new parcels of land better known as L.R. No. S/Kabras/Bushu/4093 & 4094. That the original parcel of land better known as L.R. No. S/Kabras/Bushu/949 was acquired due to joint contributions of the plaintiff’s late mother, one Joyce Nanzala Lumakasia – deceased and the 2nd defendant. That after the sub division of the original parcel of land better known as L.R. No. S/Kabras/Bushu/941, the 2 nd defendant transferred one of the resultant parcels designated as L.R. No. A/Kabras/Bushu/4094 to the 1 st defendant. The plaintiff further avers that the portion now registered to the 1st defendant is the portion where the plaintiff was allocated by the 2 nd defendant which he has extensively developed. The 1st defendant is using the police to intimidate, harass and/or threaten the plaintiff with an eviction from the portion of land. The 2nd defendant on the other hand states that he sold 2 acres of his land to the 1 st defendant in order to relocate the plaintiff who had become violent to his step mother. That this was agreed during a meeting with elders. I find that the suit land in this matter was not ancestral land and the 2nd plaintiff did not hold it in trust for the plaintiff. I find that the 1 st defendant was a bonafide purchaser for value and his title was not obtained through any fraudulent scheme. I find that the 2 nd defendant being the registered owner and sole proprietor of the original land parcel better known as L.R. No. S/Kabras/Bushu/941 measuring approximately 2.8 Ha and/or thereabouts was at liberty to sell a portion of the same to the 1st defendant. I find that the plaintiff has failed to prove his case on a balance of probabilities and I dismiss it with no orders as to costs. It is so ordered. DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 27TH JULY 2021 N.A. MATHEKA JUDGE

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