Cheruiyot v Bartiony [1988] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a registered landowner is entitled to possession even where the eviction procedure was flawed.
What this practically means
#Executive summary
#Key legal issues
#Whether the unappealed dismissal of the respondent's counterclaim for eviction rendered the subsequent eviction of the appellant wrongful and the matter res judicata
No. The substance was the contest of title, which was finally determined in the respondent's favour by the High Court; the failure of the High Court to reverse the magistrate's dismissal of the counterclaim did not affect the legal position, since possession is a necessary incident of registered ownership.
The court held that the real issue between the parties before the magistrate was who was the rightful owner of the suit land. That issue was decided adversely to the appellant by the High Court, which held the sale void under the Land Control legislation, and that holding was not appealed. As registered proprietor under the Registered Land Act, the respondent's absolute ownership carries the right to possession against the whole world. The omitted reversal of the dismissal of the counterclaim was a procedural omission that could not defeat the substantive right of the owner to possession.
Effect of registration under the Registered Land Act (Cap 300)
Registration vests absolute ownership together with all appurtenant rights and privileges, one of which is the right to possession.
Section 27 of the Registered Land Act (Cap 300) provides that registration of a person as proprietor vests absolute ownership of the land with all rights and privileges appurtenant thereto. The court characterised the right to possession as one of the acknowledged rights of ownership, so the registered proprietor was entitled to recover exclusive possession from the appellant notwithstanding that title had originally passed to the appellant pursuant to the (now void) sale and the transfer order that was later reversed on registration.
Propriety of the ex parte chamber summons procedure used to obtain eviction
The procedure was wrong; the application should have been made on notice with the appellant afforded an opportunity to be heard, but the point became barren in the circumstances.
The court accepted that the eviction application ought to have been made on notice and that the ex parte procedure was improper. Platt JA in a separate opinion expressly disapproved of it and hoped it would never be followed again. However, the majority excused the procedural defect because the High Court's own omission to order eviction when it determined title gave rise to the respondent's mistake, and the substance of registered proprietorship could not be defeated by procedural accuracy.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership in that person, including the right to possession against the whole world.
- A sale of agricultural land becomes void for all purposes where Land Control Board consent is not obtained within the three months prescribed by statute.
- A determination of ownership that stands unappealed is res judicata against the party against whom it was decided, and the successful owner is entitled to possession as a necessary incident of ownership notwithstanding an unvaried order dismissing an eviction counterclaim.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to vacate the suit land and give possession to the respondent six months from the date of judgment
- 3.Costs ordered against the appellant in favour of the respondent (per the majority, though Platt JA ordered each party to bear its own costs - see dataQualityFlags)
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal on questions of law (no specific constitutional or statutory provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Bartiony [1988] KECA 134 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/134/eng@1988-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.