Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 4 of 2018· [2021] KECA 460 (KLR)

Shadrack Bungei (Suing as Administrator of the Estate of Joseph Kipkering- Deceased) v Selina Jerotich (Sued as the administrator of the Estate of Mary Jepkosgei Kiswai- Deceased)

Court of Appeal
9 July 2021
1,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed an appeal claiming land was fraudulently taken from a deceased's estate, because fraud must be strictly proven and registered land titles are hard to challenge.

What this practically means

#

Executive summary

#
This was a first appeal to the Court of Appeal at Eldoret against the judgment of the Environment and Land Court at Kitale (Obaga, J., delivered by Njoroge, J.) of 29th May 2017, which dismissed the appellant's Originating Summons with costs. The dispute concerned whether Chepsiro/Kibuswa Block 1/Tuigoin 226 formed part of the Estate of Joseph Kipkering or that of Mary Jepkosgei Kiswai. The appellant, son and administrator of Joseph's estate, alleged that Mary fraudulently obtained the land; the respondent, administrator of Mary's estate, claimed under a woman-to-woman marriage under Nandi customary law and a family subdivision. On appeal, the Court first confirmed its own mandate to re-evaluate evidence as a first appellate court, and held that the jurisdictional objection could be raised even for the first time on appeal. It found the ELC had jurisdiction because the appellant sought determination of ownership of land, not administration of a deceased's estate, and the transfer to the ELC was prescribed by Section 30(1) of the ELC Act. On the merits, the Court held that fraud must be strictly proved; the appellant's evidence, including an unsigned and disowned shareholder list, fell short, and Mary's registered title under Section 143 of the Registered Land Act (repealed) stood. The Court respectfully disagreed with the trial Judge only on the suitability of the Originating Summons, noting Order 37 Rule 19 permits conversion into a plaint and the matter had proceeded by viva voce evidence by consent. The appeal was dismissed with costs to the respondent.

Key legal issues

#
01

Jurisdiction of the ELC over ownership of land claimed as part of a deceased's estate

Holding

The ELC had jurisdiction; the appellant sought determination of ownership of land, not administration of an estate, which was a concluded issue.

Reasoning

Although the appellant filed suit as administrator of his father's estate, the pleadings showed he sought a determination of ownership of the suit land. Administration of the estate was already concluded. Questions of entitlement to land fall within the ELC's mandate under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act. Jurisdiction could be raised at any stage since it cannot be acquired by consent or conduct.

p. 2
02

Proof of fraud

Holding

The appellant failed to strictly prove the pleaded fraud; Mary's registered title under Section 143 of the Registered Land Act (repealed) was proof of ownership.

Reasoning

The appellant's claim was founded on fraud, and the burden lay on him to plead particulars and strictly prove it. On re-appraisal, the shareholder list of Tuigoin Estate Limited was unsigned, unstamped and unverified, and was disowned by the appellant's own witness, PW3. Mary was registered as proprietor on 5th February 1992, and under Section 143 of the Registered Land Act her title could not be defeated by unsubstantiated allegations of fraud.

p. 2
03

Suitability of an Originating Summons under Order 37

Holding

The Court disagreed with the learned Judge that an Originating Summons was unsuitable; Order 37 Rule 19 allows conversion into a plaint, and the matter had proceeded by viva voce evidence by consent.

Reasoning

The trial Judge had found the dispute was not one envisaged under Order 37. The Court held that under Order 37 Rule 19 the summons can be converted into a plaint if circumstances allow, citing Kenya Hotels Ltd v Oriental Commercial Bank Ltd. Further, by consent of the parties on 28th March 2012 the matter was heard through viva voce evidence, which in effect permitted the conversion.

p. 2

Legal principles established

#
  • Jurisdiction cannot be conferred by consent, conduct or judicial craft; it either exists or it does not, and may be raised at any stage of the proceedings.
  • Where fraud is pleaded, the party pleading it must set out the particulars and strictly prove it.
  • A dispute over ownership of land, even where the parties are administrators of deceased estates, falls within the mandate of the ELC under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act.

Court orders

#
  1. 1.Appeal dismissed with costs to the respondent
On appeal from
Environment and Land Court of Kenya at Kitale
ELC Case No. 103 of 2006
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act; appeal against the judgment of the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Shadrack Bungei (Suing as Administrator of the Estate of Joseph Kipkering- Deceased) v Selina Jerotich (Sued as the administrator of the Estate of Mary Jepkosgei Kiswai- Deceased)", Case Analysis (2021). Civil Appeal No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/460/eng@2021-07-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.