[2017] KEHC 7274 (KLR)
The court held that the respondent, as the wife of the son of the vendor and in continuous occupation of the suit land, had an overriding interest under section 30(g) of the Registered Land Act. The appellant, having purchased the land with knowledge of the respondent's occupation, took the land subject to her...
Source-derived case information.
- Citation
- [2017] KEHC 7274 (KLR)
- Parties
- Appellant: Bramwel Namutala Matui; Respondent: Rose Nasimiyu Mulongo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- SN Mukunya
- Legal Topics
- Overriding Interests, Registered Land Act, Innocent Purchaser, Trespass, Possession and Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bramwel Namutala Matui
Appellant
Rose Nasimiyu Mulongo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in law and fact by holding that the respondent had an overriding interest in the suit land under section 30(g) of the Registered Land Act.
- 2 Whether the appellant was an innocent purchaser for value without notice of the respondent's interest.
- 3 Whether the respondent was a licensee or a trespasser on the suit land.
Ratio Decidendi
The court held that the respondent, as the wife of the son of the vendor and in continuous occupation of the suit land, had an overriding interest under section 30(g) of the Registered Land Act. The appellant, having purchased the land with knowledge of the respondent's occupation, took the land subject to her rights. The trial magistrate was correct in finding that the respondent was not a licensee or trespasser, and that the appellant's proprietorship was subject to the respondent's overriding interest. The appeal was dismissed as the magistrate did not misdirect himself or apply the wrong principles of law.
Court Disposition
appeal dismissed
Orders
- The appellant's appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL CASE NO.25 OF 2013
(ARISING FROM KIMILILI SRM CIVIL SUIT NO.24 OF 2012)
BRAMWEL NAMUTALA MATUI…………….....APPELLANT
VERSUS
ROSE NASIMIYU MULONGO…………..........RESPONDENT
JUDGEMENT
[1]. The Appellant Mr. Bramwel Matui filed this appeal against the decision of the Kimilili Resident Magistrate (Hon. S.K. Ngii RM) delivered on 12/4/2013 in which the appellants claim in Kimilili SPM Civil Suit No.24 of 2012 was dismissed.
[2]. He sets out various grounds of Appeal. The salient grounds inter alia, that the learned Magistrate erred in relying on provisions of law and fact which were irrelevant to the dispute and that he ignored the fact that the appellant was an innocent purchaser without notice further that the claim of the respondent was that of a licencee interest. The original owner and finally that the respondent was a trespasser on title No. Elgon/Namorio/815 now passed on to the Appellant. He relied on the case of Hassan Kweyu Olango -vs- Kati Olango Bungoma Civil Suit No.148 of 2002.
[3]. The respondent opposed the appeal. He averred that the Learned Magistrate was right when he relied on the provisions of section 30(g) of the Registered Land Act Chapter 300 Laws of Kenya (now repealed).
On the basis that the respondent was in occupation at the time of transfer of title to the appellant and thus her rights were as such protected. The respondent submitted that the trial Magistrate did not err in his findings.
The respondent relied on the case of Kanyi -vs- Muthiora (1984) KLR 712 where it was held that the respondent had agents against the appellant stemming from possession and occupation of part of the land which amounted to overriding interest not required to be noted on the register and that the appellants proprietorship was subject to it as per section 30(g) of RLA.
[4]. On perusal of the record it is apparent that the learned Magistrate did not err in relying on section 30(g) of the Registered Land Act. In my view it cannot be argued that section 30(g) of RLA is irrelevant to the circumstances of this case.
It is also evident from the record that the appellant was aware of the fact that the respondent was living on the suit land with her husband and her children. She has continued to live on the suit land. The respondent is a wife of the son of the vendor to the appellant. There is no evidence on record to show that he ever stopped living on the land in his life time. When he died, he left his wife and children on the suit land. It can neither be said that he had a licensee interest nor can it be argued that he was a trespasser in land parcel Elgon/Namorio/815. This case is clearly distinguishable from Hassan Kweyu Olango -vs- Kati Olango where the respondent came to invade the land after she had moved out of the suit land.
[5]. The trial Magistrate was right in holding that the respondent held an overriding interest on the area he occupied. He was equally right when he held that the appellant purchased the land subject to the respondent’s said interests. It is upto the respondent to approach the ELC Court for the necessary orders to secure the title for the portion he occupied. In this regard, I wish to say no more as the issue is not before me now.
[6]. In the final analysis, I find that the learned trial Magistrate did not misdirect himself or act under the wrong principals of law.
The appellant’s appeal is therefore dismissed with costs to the respondent.
Judgment read in open Court.
DATED and DELIVERED at BUNGOMA this 10th day of March , 2017
S.N. MUKUNYA
JUDGE
In the presence of:
Court Assistants - Chemtai/Joy
Mr. Musumba - For Mr. Bw Ochiri
Gachuru - For Mr. Areba for the Respondent