[2018] KEELC 2167 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 467 OF 2014

N A W...........................PLAINTIFF

VERSUS

W W..........................DEFENDANT

JUDGEMENT

In this case, the plaintiff avers that she is and has been in occupation of Land Parcel No. Bunyala/Nambacha/[particulars withheld] and the defendant is the registered owner. The plaintiff avers that she bought the land in 1977 at a price of Kshs 8,050/= from Agricultural Finance Corporation and had it registered in the name of her son the defendant as her husband was in Uganda. That the defendant herein is threatening to sell the land.The plaintiff avers that despite the said registration of the defendant herein he is holding the same in trust for the entire family. The plaintiffs claim against the defendant is for a declaration that the defendant is holding land parcel No. L.R. Bunyala/Nambacha//[particulars withheld] in trust for the plaintiff. The plaintiff prays for judgment against the defendant herein for;

1. A Declaration that the Defendant is holding L.R. Bunyala/Nambacha//[particulars withheld] in trust for the plaintiff.

2. An order compelling the Defendant to transfer the titles to the plaintiff’s name.

3. Costs and interests.

4. Any other relief this Honourable Court may deem just and expedient.

PW2 the plaintiff’s father PW3 and PW4 the plaintiff’s son all corroborated the plaintiff’s evidence. They maintain that the defendant was holding the suit land in trust for the family. Pw2 stated that between 1960 to 1977 he was working in Uganda as a driver. When he got back PW1 informed him that she had bought land and put it in the name of the defendant who is their son. The defendant now refuses to relinquish ownership even though he has been given ancestral land elsewhere.

DW1 testified that, the plaintiff was his mother and she never bought the said land. The land was given to him by his grandfather and he was only 11 years then the title and receipts were given to his mother for safe keeping. He does not therefore hold the land in trust for anyone.

This court has carefully considered the evidence and the submissions herein. 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.”

This court in considering this matter referred to the case of Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna & Another (2013) eKLRwhere 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. Hon. Justice Munyao Sila 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 the plaintiff’s testimony that she is and has been in occupation of Land Parcel No. Bunyala/Nambacha//[particulars withheld] and the defendant is the registered owner. The plaintiff avers that she bought the land in 1977 at a price of kshs 8,050/= from Agricultural Finance Corporation and had it registered in the name of her son the defendant as her husband was in Uganda. That the defendant herein is threatening to sell the land.The plaintiff avers that despite the said registration of the defendant herein he is holding the same in trust for the entire family. She produced the land buying agreements and receipts as PEX.1,2 and 3, besides the defendant was only 11 years old at that time. I find the defence unacceptable and I dismiss it. I find that that the defendant is holding the title of the suit land in trust for the family. Indeed all the family members reside on this land. I find that the plaintiff has proved her case on a balance of probabilities and l grant the following orders;

1. A Declaration that the Defendant is holding L.R. No. Bunyala/Nambacha//[particulars withheld] in trust for the plaintiff.

2. An order compelling the Defendant to transfer the title L.R No. Bunyala/Nambacha//[particulars withheld] to the plaintiff’s name.

3. Costs of this suit to the plaintiff.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 26THDAY OF JULY, 2018.

N.A. MATHEKA

JUDGE