Patel & another v Mwasha & 149 others

4. The plaintis testied that they are the lawfully registered tenants in common in equal share of that parcel of land known as Plot No. 1 Group X Kibokoni-Malindi, Title Number Lt 37, Folio 162a, File 3190 measuring approximately 375.06acres, hereinafter referred to as the suit property, thereby establishing their rightful ownership. 5. The plaintis acquired the said suit property as heirs of the estate of the late Purshottam Chaturbhai Patel through an indenture of transfer registered on the 7th day of July 1998, a lawful acquisition that solidies their claim as proprietors. 6. The plaintis averred that when they acquired the property after successful transmission, the suit property was vacant, with no settlers or third parties claiming or occupying it. 7. The plaintis further averred that in 2018, the defendants sometimes invaded and/or trespassed onto the suit property and commenced construction of temporary structures with the aim of residing on it. 8. despite being given the opportunity, the defendants failed to enter an appearance or le a response to the plainti's suit to controvert the plaintis' allegations, thereby failing to defend their actions. 9. As correctly submitted by Mr. Omondi for the plaintis, Section 24 (a) of the Land Registration Act, 2012 Laws of Kenya provides as follows: “ 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;” 10. Further, Section 26 of the Land Registration Act goes further to provide that: “ 1) 11. The certicate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, 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 certicate of title has been acquired illegally, unprocedurally, or through a corrupt scheme. In the case of Embakasi Properties Limited & another v Commissioner of Lands & another [2019] eKLR, the Court of Appeal held as follows: “ Although it has been held time without end that the certicate of title is: “conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof,” it is equally true that ownership can only be challenged on the ground of fraud or misrepresentation to which the proprietor named is proved to be a party. See section 23 of the repealed Registration of Titles Act. Section 26 of the Land Registration Act, 2012, though not as emphatic as section 23 aforesaid on the conclusive nature of ownership, conrms that the certicate is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner. It adds that apart from encumbrances, https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14131/eng@2024-12-20 2

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easements, restrictions to which the title is subject, there is no guarantee of the title if it is acquired by fraud or misrepresentation or where it has been acquired “illegally, unprocedurally or through a corrupt scheme.” 12. From the foregoing, a Certicate of Title issued by the Registrar is a crucial document that serves as conclusive evidence of proprietorship towards the person named proprietor of the land. In this case, the plaintis produced a Certicate of Ownership, Indenture of Transfer, and Certicate of postal search as exhibits proving they are the registered owners of the suit property, having inherited it from their late father, Purshottam Chaturbhai Patel. This, therefore, suciently proves that the suit property belongs to the plaintis. 13. The defendants failed to appear and controverted the plaintis' evidence. This court then nds that the ownership of the suit property has been suciently proved to belong to the plaintis. 14. Section 25 (1) of the Land Registration Act provides that: “ (1) The rights of a proprietor, whether acquired on rst registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges, and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights, and interests as aect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.” 15. The provision vests indefeasible rights on a registered owner and is free from all other interests and claims. The rights can only be defeated in the manner provided under the Act. The plaintis stated that the defendants had encroached and or trespassed onto the suit property and put up temporary structures. To support their claim, they produced notices of eviction, demand letters, and a copy of the survey report with a map sheet annexed that identied the existence of houses within the boundaries of the suit property. This corroborated their statements that were adopted as their evidence in chiefat the time of the hearing. This is sucient proof of trespass by the defendants onto the suit property. On the other hand, the defendants failed to respond and or controvert any of the plainti’s averments. 16. This court nds that the plaintis have proved to the required standard that the defendants trespassed on their property and that they are entitled to the reliefs sought in the plaint in entirety. 17. Since this suit was undefended, I will make no orders to costs. DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 20TH DECEMBER 2024. E. K. MAKORI JUDGE In the Presence of: Mr. Mwarumba H/B for Mr. Omondi for the Plainti. Happy: Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14131/eng@2024-12-20 3

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In the Absence of: The Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14131/eng@2024-12-20 4

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