James Atema v Obadia Shoboche Isalia & Joseph Mung’aya Makotsi [2018] KEELC 1311 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 60 OF 2013

JAMES ATEMA..........................................................PLAINTIFF

VERSUS

OBADIA SHOBOCHE ISALIA ......................1ST DEFENDANT

JOSEPH MUNG’AYA MAKOTSI..................2ND DEFENDANT

JUDGEMENT

The plaintiff’s case is that, in the year 1998, the plaintiff bought or purchased from the first defendant and one Dorica Shikami as administrators and beneficiaries in KAKAMEGA H.C. SUCCESSION CAUSE NO. 218 of 1985 a 3 acre portion of land title number KAKAMEGA/SHIKULU/657 then belonging and registered in the names of Zakaria Isalia Shikami and fully paid for the purchase price and was let into possession of the land. It was a term of the agreement between the first defendant and the second defendant that as soon as the plaintiff had become registered and/or obtained title to the said piece of land, the first defendant would transfer the portion bought and purchased by the plaintiff to the plaintiff.  Unknown to the plaintiff and with the connivance of the second defendant after the first defendant had obtained title to the said piece of land the first defendant fraudulently transferred the said piece of land to himself and the second defendant in order to defeat the plaintiff’s right and title to the said piece of land.

Alternatively and without prejudice to the foregoing, the plaintiff states that he has since the year 1998 occupied and tilled a 3 acre portion of land parcel number KAKAMEGA/SHIKULU/657 without interruption or hindrance and as of right from anyone.The plaintiff states that on or about 7th January, 2013, the defendants got themselves registered as owners of the whole piece of land known as KAKAMEGA/SHIKULU/657 containing by measurement 5. 20 acres (i.e. 12. 5 acres) including the 3 acres portion occupied by the plaintiff.The plaintiff contends that the registration of the defendants as owners of the said piece of land are subject to the prescriptive rights of the plaintiff as occupier of 3 acres portion of the said land under Section 30 (f) of the Registered Land Act, Cap 300, Laws of Kenya.The plaintiff’s claim against the defendants is for an order that the defendants have acquired title to the said piece of land through fraud, and a declaration that the plaintiff be registered as owner of 3 acres portion through adverse possession.  PW2, PW3 and PW4 corroborated the plaintiff’s evidence.The plaintiff prays for judgment against the defendants jointly and severally as follows:-

a.  A declaration that the defendants are registered as owners of land parcel number KAKAMEGA/SHIKULU/657 through fraud.

b. An order that the registration of the defendants as land parcel number KAKAMEGA/SHIKULU/657 be annulled and cancelled.

c. In the alternative to (a) and (b) above, an order that the plaintiff be registered as owner of 3 acres portion of title No. KAKAMEGA/SHIKULU/657 be subdivided and 3 acres portion thereof be transferred and registered in the plaintiff’s name.

d. An order that the defendants do pay the costs of this suit.

The defendants deny that the plaintiff bought or purchased from the 1st defendant and one Dorcas Shikami as administrators and beneficiaries in KAKAMEGA SUCCESSION CAUSE NO. 218 OF 1985 a 3 acre portion of land title number KAKAMEGA/SHIKULU/657 then belonging and registered in the names of ZAKARIA ISALIA SHIKAMI and fully paid for the purchase price and was let into possession of the land.  The defendants deny that the plaintiff has since the year 1998 occupied and tilled a 3 acre portion of land parcel number KAKAMEGA/SHIKULU/657 without interruption or hindrance and as of right from anyone.  The defendants admits that they got registered as owners of the whole piece of land known as KAKAMEGA/SHIKULU/657 but deny that their land includes three (3) acres portion occupied by the plaintiff. The defendants maintain that the plaintiff was only leasing the land. DW3 confirms that they sold the land to the 2nd defendant.

This court has carefully considered the evidence and submissions therein. 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 a finding of fact that the defendants are now the registered proprietors of Idakho/Shikulu/4087 and Idakho/Shikulu/4087 being the subdivision of Kakamega/Shikulu/657. The plaintiff’s case is that, in the year 1998, the plaintiff bought or purchased from the first defendant and one Dorica Shikami as administrators and beneficiaries in KAKAMEGA H.C. SUCCESSION CAUSE NO. 218 of 1985 a 3 acre portion of land title number Kakamega/Shikulu/657 then belonging and registered in the names of Zakaria Isalia Shikami and fully paid for the purchase price and was let into possession of the land. The plaintiff has produced the sale agreement as an exhibit and infact DW2 was a signatory. The Chief at the material time PW4 also testified that the plaintiff did purchase the piece of land and he was a witness. I find that the registration of the defendants as absolute proprietors was fraudulent as the 3 acres had already been sold to the plaintiff and he taken possession. I find the defence unsustainable and I reject it. The plaintiff has proved his case on a balance of probabilities and I grant the following orders;

1. A declaration that the defendants are registered as owners of land parcel number KAKAMEGA/SHIKULU/657 through fraud.

2.  An order that the plaintiff be registered as owner of 3 acres portion of title No. KAKAMEGA/SHIKULU/657 be subdivided and 3 acres portion thereof be transferred and registered in the plaintiff’s name.

3.  The defendants do pay the costs of this suit.

It is so ordered.

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

N.A. MATHEKA

JUDGE