[2021] KEELC 3891 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 19 OF 2015

MARITINA MURUTU ............................................ PLAINTIFF

VERSUS

JAMES AMUKHOYE ESHITERA ........................DEFENDANT

JUDGEMENT

The plaintiff avers that he is the sole absolute registered owner of all that parcel of land LR. No. N. Wanga/Namamali/889 measuring 6. 5 acres designated on Map Sheet No. 3. That the plaintiff acquired the aforesaid land parcel on transmission from her husband vide Kakamega High Court Succession Cause No. 150 of 1992. The defendant and or his father owns land parcel L.R. N. Wanga/Namamali/284 which has been subdivided creating N. Wanga/Namamali/1071 and 1072. The defendant and or his father’s claim in the estate of Murutu Were were dismissed vide Kakamega High Court Succession Cause No. 142 of 1992 which claims were decided in favour of the plaintiff. In 2007/2008 or thereabout the defendant without the plaintiffs’ consent, probable cause, unlawfully illegally trespassed onto a portion of the plaintiffs aforesaid Land LR N. Wanga/Namamali/889. The defendant has continued to trespass onto the aforesaid land and forcefully, unlawfully built a house and commenced use of a portion of the land thereby denying the plaintiff quite peaceful possession, use and enjoyment of her land. The plaintiff avers that the defendant has no beneficiary or purchaser’s or any other known interest or right whatsoever in land parcel LR. No. N. Wanga/Namamali/889, thus the defendant’s continued use of the land is an act of trespass which continues to cause the plaintiff loss and damages. The plaintiff’s claim against the defendant is for an eviction from Land Parcel LR. N. Wanga/Namamali/889 and thereafter be restrained from encroaching onto the land and or interfering with the plaintiff’s use and occupation of the same. The plaintiff claims for Mesne Profits from the defendant for loss of use of the land to be assessed by the court. The plaintiff prays for judgment against the defendants for:-

1. Eviction of the defendant, his family, servants or any other person claiming through him from land parcel LR. No. N. Wanga/Namamali/889.

2. Costs of this suit.

PW2 and PW3 gave evidence and corroborated the plaintiff’s evidence.

The defendant denies that the plaintiff acquired LR. No. N/Wanga/Namamali/889 on transmission from her husband vide Kakamega High Court Succession Cause No. 150 of 1992. The defendant avers that he is the legal and equitable owner of land LR. No. N/Wanga/Namamali/889 and thus can neither trespass on his own parcel of land nor be said to have unlawfully built his house thereon. His testimony is that the land belonged to him but produced no evidence or witness to support the same.

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 Judge 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 a finding of fact the plaintiff is the registered proprietor of Land parcel No. N/Wanga/Namamali/889. PW1 testified that she obtained the suit land vide Kakamega High Court Succession Cause No. 150 of 1992. The defendant and or his father owns land parcel L.R. N. Wanga/Namamali/284 which has been subdivided creating N. Wanga/Namamali/1071 and 1072. The defendant and or his father’s claim in the estate of Murutu Were were dismissed vide Kakamega High Court Succession Cause No. 142 of 1992 which claims were decided in favour of the plaintiff. In 2007/2008 or thereabout the defendant without the plaintiffs’ consent, probable cause, unlawfully illegally trespassed onto a portion of the plaintiffs aforesaid Land LR N. Wanga/Namamali/889. the plaintiff produced the a copy of the title deed, search certificate and rulings of the Kakamega High Court Succession Cause No. 142 of 1992 as exhibits 1 to 3. The defence was a mere denial. No evidence was adduced to contradict the plaintff’s testimony. The plaintiff’s title is indefeasible and can only be challenged if it was issued through a fraudulent scheme which the defendant has not proved. I find that the plaintiff has proved her case on a balance of probabilities and I grant the following orders;

1. The defendant, his relatives, servants and/or agents to vacate the suit land parcel No. N/Wanga/Namamali/889 within the next 6 (six) months from the date of this judgement and indefault eviction order to issue forthwith.

2. Each party to bear its own costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 23RD MARCH 2021.

N.A. MATHEKA

JUDGE