[2018] KEELC 2019 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 51 OF 2014

SUSAN MILKA ORAMISI..................................................PLAINTIFF

VERSUS

JAMES MBUTI KUNGU................................................ DEFENDANT

JUDGEMENT

In this case, the plaintiff avers that L.R. KAKAMEGA/NZOIA/374 was the property of her late husband James Oramisi Baraza who died in 2011. The plaintiff avers that 6 months after the plaintiff’s death the defendant without the consent, authority or knowledge of the plaintiff caused the transfer of L.R. KAKAMEGA/NZOIA/374 into his name the said transfer was fraudulent. The plaintiff prays for judgment against the defendant herein for;

1. An order of cancellation of the Defendant as the registered owner of L.R. KAKAMEGA/NZOIA/374 and that the Land Registrar Kakamega County do register the plaintiff as the owner of the suit parcel; together with a concurrent order of permanent injunction and eviction against the defendant, his agents, workers, servants or any other person claiming through him from putting to use, constructing on or in any manner whatsoever interfering with L.R. KAKAMEGA/NZOIA/374.

2. Costs of this suit.

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

PW1 testified that, she is a widow to the late James Oramisi Baraza who died in 2011 (PEx 1 is the death certificate). Her late husband was the owner of L.R. Kakamega/Nzoia/374 (PEx. 2 is the official search certificate). The plaintiff obtained the letters of administration for her deceased husband’s estate (PEx3). The plaintiff avers that on or about the 11th April 2013 the defendant without the consent, authority or knowledge of the plaintiff caused the transfer of L.R. KAKAMEGA/NZOIA/374 into his name the said transfer was fraudulent.

DW1, the defendant confirmed that he is the registered proprietor of land parcel No. L.R. KAKAMEGA/NZOIA/374 (DEx 1 is the title deed). He bought the land from one Isaiya Emeje Omonya who was his neighbor (DEx2 is the sale agreement). At first it was registered in the name of James Oramisi Baraza since they were friends and he needed the title to obtain a loan from some Asian in Migori. He later transferred the land to his name after the said James Oramisi Baraza signed all the transfer documents. DW2, Isaiya Emeje Omonya the seller confirms that he sold the land to the defendant, he transferred the land to the James Oramisi Baraza upon the request of the defendant. He at all times dealt with the defendant and received money from him and not from James Oramisi Baraza.

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.

The defendant who testified in court together with his written statement stated that he was the registered owner of parcel of land known as No. L.R. KAKAMEGA/NZOIA/374(DEx1is the title deed). He bought the land from one Isaiya Emeje Omonya who was his neighbor (DEx2 is the sale agreement). At first it was registered in the name of James Oramisi Baraza since they were friends and he needed the title to obtain a loan from some Asian in Migori. He later transferred the land to his name after the said James Oramisi Baraza signed all the transfer documents. DW2 the seller confirms that he sold the land to the defendant, he transferred the land to the James Oramisi Baraza upon the request of the defendant. He at all times dealt with the defendant and received money from him and not from James Oramisi Baraza. The defendant produced all the requisite transfer documents duly executed by James Oramisi Baraza (DEx 4 & 5 Application for consent, letter of consent and transfer forms). It is DW2 evidence that the defendant paid all the money for the purchase of this land. I find that no evidence has been adduced to show that the defendant was involved in any illegality, any unprocedural process or corrupt scheme to obtain the title. The plaintiff has failed to prove her case on a balance of probabilities and I dismiss her case with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 26TH DAY OF July 2018.

N.A. MATHEKA

JUDGE