[2018] KEELC 1316 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 213 OF 2013

SULEIMAN WASICHE ETOKHO..............................PLAINTIFF

VERSUS

PHILISTER NASWA..................................................DEFENDANT

JUDGEMENT

The plaintiff’s case is that, sometimes in the year 1997, the plaintiff had a problem to solve and sought and got a purchaser of a piece of land from him.The plaintiff then entered into sale of land agreement with the defendant, the purchaser for a portion of his land and they agreed at Ksh. 54,000 only.It was incumbent upon the plaintiff and the defendant herein under implied terms that they would seek consent of the land control board upon settlement of the consideration.The plaintiff allowed the defendant to erect a home in the portion so sold to her. Upto the year 2003, the defendant had made a total payment of Ksh. 49,000 and failed and/or refused to provide the plaintiff with a copy of the agreement and has further deliberately refused to settle the balance of the agreed consideration.In view of the breach above, the plaintiff prays that this honourable court do declare that agreement entered into by himself and the defendant from that null and void and the eviction of the defendant from that land parcel NO. N. WANGA/MAYONI/1759. The plaintiff prays for judgment against the defendant for:-

(a) Orders of eviction.

(b) Costs of this suit.

(c) Interest on (a) and (b) above.

The defendant in her defence avers that she purchased one (1. 0) acre from the plaintiff herein at a consideration of Ksh. 54,000/= which amount has been paid to the full and her effort to have the said one acre transferred to her has been fruitless.The defendant denies being allowed by the plaintiff to erect a house on the said parcel and further states that the parcel was hers and therefore she had the constitutional rights to use it as she thinks better.The defendant avers that if at all the plaintiff wants his one (1. 0) acre sold back, then he should refund the defendant’s money being Ksh. 54,000/= and or the admitted 49,000 plus interest at Commercial Rates from the time of agreement till payment in full.The defendant states that the plaintiff’s suit is defective, incompetent, bad in law, time-barred and shall at the hearing hereof raise a preliminary objection for the same to be struck out and/or dismissed with costs. The defendant’s counter claim of Ksh. 49,000 and 6,000 be allowed with costs.

This court has carefully considered the evidence and submissions therein. The defendant was served but failed to attend court to give oral evidence. 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. 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 he entered into sale of land agreement with the defendant, the purchaser for a portion of his land and they agreed at Ksh. 54,000 only. It was incumbent upon the plaintiff and the defendant herein under implied terms that they would seek consent of the land control board upon settlement of the consideration. The plaintiff allowed the defendant to erect a home in the portion so sold to her. Upto the year 2003, the defendant had made a total payment of Ksh. 49,000 and failed and/or refused to provide the plaintiff with a copy of the agreement and has further deliberately refused to settle the balance of the agreed consideration. In view of the breach above, the plaintiff prays that this honourable court do declare that agreement entered into by himself and the defendant from that null and void and the eviction of the defendant from that land parcel NO. N. WANGA/MAYONI/1759. No evidence was adduced to show proof of ownership of this piece of land. As matters stand now this court cannot determine who the registered proprietor of land parcel NO. N. WANGA/MAYONI/1759 is. I find that the plaintiff has failed to establish his case on a balance of probabilities and I dismiss the same with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 23RD DAY OF OCTOBER 2018.

N.A. MATHEKA

JUDGE