[2019] KEHC 5880 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC CASE NO. 62 OF 2016

WILBERFORCE AMBUCHE NDUKU.....PLAINTIFF

VERSUS

EVALINE OMUSULA

NABAKOLI OMUSULA

WAKUBA OMUSULA ...........................DEFENDANTS

JUDGEMENT

The plaintiff avers that he is the absolute registered owner of parcel of land No. MARAMA/SHIKUNGA/1146 measuring approximately 0. 33 Ha with clear demarcated boundaries. The plaintiff avers that without any justifiable cause and/or authority the defendants have jointly and severally trespassed onto his parcel of land No. MARAMA/SHIKUNGA/1146 and commenced illegal activities as well as cultivating their food crops thereon. The plaintiff aver that as the absolute registered proprietor of the suit parcel of land he is entitled to exclusive ownership and use of the land which the defendants are unlawfully interfering with. The plaintiff therefore prays for an order of permanent injunction restraining the defendants jointly and severally from trespassing, laying claim to, cultivating and/or in any other way interfering with the plaintiff’s peaceful use and occupation of his parcel of land No. MARAMA/SHIKUNGA/1146. The plaintiff prays for judgment against the defendants for:-

a. An order of permanent injunction restraining the defendants jointly and severally either by themselves and or through their agents, servants, representatives and or any other person acting under their direction from trespassing, moving onto, alienating, depositing, building materials and or any other manner from interfering with the plaintiffs peaceful use and occupation of his parcel of land No. MARAMA/SHIKUNGA/1146.

b. Cost of this suit.

c. Any other relief this honourable court deems fit and expedient to grant under the circumstances.

PW1, the plaintiff testified that, he is absolute registered owner of parcel of land No. MARAMA/SHIKUNGA/1146 measuring approximately 0. 33 Ha and produced the title deed and the official search as PEx2 and PEx3. He confirmed that the defendant’s (his brothers wives) were cultivating the suit land but not living there.

This court has carefully considered the evidence therein. The defendants were served but failed to attend court or file any defence. 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 absolute registered owner of parcel of land No. MARAMA/SHIKUNGA/1146 measuring approximately 0. 33 Ha and produced the title deed and the official search as PEx2 and PEx3. He confirmed that the defendant’s (his brothers wives) were cultivating the suit land but not living there. His evidence has not been challenged. I find that the plaintiff has established his case on a balance of probabilities and I grant the following orders;

1. An order of permanent injunction restraining the defendants jointly and severally either by themselves and or through their agents, servants, representatives and or any other person acting under their direction from trespassing, moving onto, alienating, depositing, building materials and or any other manner from interfering with the plaintiffs peaceful use and occupation of his parcel of land No. MARAMA/SHIKUNGA/1146.

2. No orders as to costs as the parties are relatives.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 26TH JUNE 2019.

N.A. MATHEKA

JUDGE