Automated Summary
Key Facts
The Church of Jesus Christ of Latter Day Saints Kenya Registered Trustees (plaintiffs) are registered owners of L.R. No. 337/1632 in Mavoko Township, Machakos District, having acquired the property from Trupki Limited in 2005 and registered it in 2006. Defendants, led by Francis Nzioka Nthenge, challenge the title's validity as illegally obtained and assert ownership claims based on adverse possession, prescription, first occupation, ancestral rights, and trust land entitlement. The court ruled that the defense raises at least one triable issue (adverse possession) warranting a full trial, dismissing the plaintiffs' application to strike out the defense.
Issues
- The Defendants claimed ownership of the Suit Property through adverse possession, prescription, first occupation, ancestral rights, and argued that Trust Land could not be transferred to third parties without considering existing occupants. The court determined adverse possession could be a triable issue, while other claims lacked sufficient legal foundation.
- The Defendants questioned the legal validity of the Plaintiff's Certificate of Title, alleging it was acquired illegally, unlawfully, without due process, or through fraud. The court analyzed statutory provisions (Section 23 of the Registration of Titles Act) and case law to assess these claims.
- The court evaluated if the Defendants' Defence and Counterclaim disclose any triable issues warranting a full trial, considering the Plaintiff's application to strike them out. The Defendants raised allegations of procedural irregularity and fraud in the title acquisition, while the Plaintiff argued the Defence lacked legal merit.
Holdings
The court dismissed the plaintiff's application to strike out the defendants' defense and counterclaim, determining that the defense based on adverse possession raises a triable issue warranting a full trial.
Remedies
- Costs awarded to the Defendants
- Application dismissed with costs to the Defendants
Legal Principles
The court analyzed the Defendants' claim of adverse possession as a basis for ownership of the Suit Property, determining that their allegations of continuous open occupation for over 30 years constituted a triable issue under Kenyan law.
Precedent Name
- Wreck Motor Enterprises v The Commissioner of Lands & 3 Others
- D.T. Dobie & Company (Kenya) Ltd vs Muchina
- Nairobi Permanent Markets Society v Salima Enterprises and Others
Cited Statute
Registration of Titles Act
Judge Name
J.M. Ngugi
Passage Text
- Consequently, I would dismiss the Notice of Motion Application dated 24/02/2010 as amended orally in court on 03/11/2010 with costs to the Defendants, which I hereby do.
- ...[I]s it alright for unscrupulous individuals to join hands with government employees and issue certificates of title in disregard of those already in occupation of land... Was the right procedure followed by the plaintiff to acquire the certificate of title they now exhibit before court... History has taught us that some of the sections we find in our laws were imported into African minds and thoughts to safeguard what has been taken by the gun. Is it right to continue following such sections of the law without question even when it is very clear such laws are adverse to the rightful owners of the land in issue... Can trust land held by the government or municipal council as in this case be given out to 3rd parties in disregard of those already in occupation... Is the doctrine of prescription and first occupation available to the defendants...
- I have, reluctantly, come to the view that the Defendants' counterclaim in this respect does disclose a reasonable cause of action... I am of the view that even if the Defendants were to be permitted to amend their Defence as intended, as particularized, the facts do not disclose fraud on the part of the Plaintiff even assuming the facts in a light most favorable to the Defendants.