[2007] KEHC 2304 (KLR)

[2007] KEHC 2304 (KLR)

The High Court held that the appellant failed to prove she was the first registered proprietor of the suit property, as the title deed was only prima facie evidence and no further evidence of first registration was adduced. However, the respondent conceded during cross-examination that the appellant was the first registered proprietor, thereby relieving her of the burden of proof on that point. Section 143 of the Registered Land Act only protects first registered proprietors who are in possession, and the appellant was not in possession; thus, she could not rely on that statutory protection. The respondent's counterclaim for specific performance was not time-barred, as the cause of action...

Citation
[2007] KEHC 2304 (KLR)
Parties
Appellant: Wangeci Kibithe; Respondent: Benson Kago
Court
High Court
Court Station
High Court at Kitale
Jurisdiction
Kenya
Judgment Date
18 June 2007
Case Number
Civil Appeal 17 of 2005
Procedural Posture
Civil Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Specific Performance, First Registration, Limitation of Actions, Rectification of Register
Source Language
English
Land and Property Civil Procedure Specific Performance First Registration Limitation of Actions Rectification of Register

Case Brief

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Parties

Wangeci Kibithe

Appellant

Benson Kago

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the appellant proved she was the first registered proprietor of the suit property and entitled to protection under Section 143 of the Registered Land Act.
  2. 2 Whether the respondent's counterclaim for specific performance was time-barred under Section 4(1) of the Limitation of Actions Act.
  3. 3 Whether the trial court erred in ordering specific performance and dismissing the appellant's claim for eviction.

Ratio Decidendi

The High Court held that the appellant failed to prove she was the first registered proprietor of the suit property, as the title deed was only prima facie evidence and no further evidence of first registration was adduced. However, the respondent conceded during cross-examination that the appellant was the first registered proprietor, thereby relieving her of the burden of proof on that point. Section 143 of the Registered Land Act only protects first registered proprietors who are in possession, and the appellant was not in possession; thus, she could not rely on that statutory protection. The respondent's counterclaim for specific performance was not time-barred, as the cause of action...

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed with costs to the respondent.