Marko Asutsi Lihanda & another v George Nadida Omingo [2020] eKLR Case Summary

Court
Environment and Land Court at Kakamega
Category
Civil
Judge(s)
N.A. Matheka
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Marko Asutsi Lihanda & another v George Nadida Omingo [2020] eKLR


1. Case Information:
- Name of the Case: Marko Asutsi Lihanda & Lawi Asutsi Lihanda v. George Nadida Omingo
- Case Number: ELCA Case No. 20 of 2019
- Court: Environment and Land Court at Kakamega
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): N.A. Matheka
- Country: Kenya

2. Questions Presented:
The court must resolve several legal issues, including:
- Whether the trial court erred in finding that the respondent proved his case on a balance of probabilities.
- Whether the trial court allowed a claim that was time-barred.
- Whether there was evidence of fraud committed by the second appellant.
- Whether the title held by the second appellant was indefeasible and could not be struck out without following legal processes.
- Whether a valid contract existed between the respondent and the first appellant.

3. Facts of the Case:
The appellants, Marko Asutsi Lihanda and Lawi Asutsi Lihanda, contested a ruling made by the Kakamega Chief Magistrate’s Court regarding the ownership of land parcel L.R. No. Isukha/Shirere/2148. The respondent, George Nadida Omingo, claimed to have purchased part of the land from the first appellant in 1978. However, the appellants argued that the land in question was different from what was claimed by the respondent, and they contended that the transaction was void due to lack of consent from the Land Control Board, as required under the Land Control Act.

4. Procedural History:
The case began in the Kakamega Chief Magistrate’s Court, where the respondent’s claim was upheld. The appellants then filed an appeal to the Environment and Land Court, seeking to overturn the lower court's decision on several grounds, including the assertion that the trial magistrate erred in finding the transaction fraudulent and in declaring the respondent as the lawful owner of the land.

5. Analysis:
- Rules: The court considered the Land Registration Act, particularly Sections 24(a) and 26(1), which stipulate that a registered proprietor's title is absolute and indefeasible unless proven otherwise through fraud or illegal acquisition. The Land Control Act, particularly Section 6, was also relevant as it voids land sale agreements without the requisite consent.

- Case Law: The court referenced the case of Elijah Makeri Nyangw’ra v. Stephen Mungai Njuguna & Another (2013) eKLR, which emphasized the protection of registered titles and the limited grounds upon which they can be challenged. The court also cited Mwanasokoni v. Kenya Bus Service (1982 - 88) 1 KAR 870, which established the appellate court's duty to evaluate evidence and findings from the lower court.

- Application: The court found that the respondent had presented sufficient evidence to support his claim of ownership, despite the appellants’ arguments regarding discrepancies in land identification. The magistrate's findings were deemed supported by the evidence, and the court upheld the conclusion that the transfer of land to the second appellant was fraudulent.

6. Conclusion:
The court dismissed the appellants' appeal, affirming the lower court's ruling. The decision highlighted the importance of adhering to the procedural requirements of land transactions and reinforced the principle that registered titles are protected unless proven otherwise.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The Environment and Land Court upheld the trial magistrate's decision that the respondent was the lawful owner of the disputed land. The ruling emphasized the significance of proper land transaction procedures under Kenyan law, particularly the necessity of obtaining consent from the Land Control Board. This case underscores the legal complexities surrounding land ownership and the protections afforded to registered proprietors in Kenya.

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