Kipsang Chepkwony v David Kiptoo Cheluget & another [2013] KEELC 80 (KLR)
The bottom line
#A Kenyan court cancelled a father-to-son land gift made to dodge a court judgment, ruling that even so-called innocent recipients who paid nothing lose the land.
What this practically means
#Executive summary
#Key legal issues
#Effect of an ultra vires tribunal award adopted as a court judgment
Although the tribunal lacked jurisdiction, the resulting judgment and decree remain in force and must be respected unless set aside; a party seeking nullity should have pleaded it by counterclaim
The court acknowledged the tribunal lacked jurisdiction over the dispute, but Section 7 of the Land Disputes Tribunal Act caused the award to be entered as a judgment and decree of the Kapsabet court. That judgment was never set aside - the judicial review application and appeal by the 1st defendant both failed. Public policy requires respect for subsisting judgments, and in the absence of a counterclaim seeking nullity, the court could not declare it void without unfairness to the plaintiff.
Whether the transfer to the 2nd defendant was fraudulent
The transfer, made by a father to his son as a gift shortly after the award was adopted as judgment, was fraudulent and intended to defeat the decree
The 1st defendant was clearly aware of the award, having filed judicial review proceedings to quash it, and his counsel was present when it was read. The court found it improbable that the 2nd defendant, his adult son living on the land, was unaware of the dispute. The timing of the transfer between the adoption of the award and the decree evidenced the intent to defeat the judgment; the circumstances spoke for themselves without need of direct evidence.
Protection of the 2nd defendant's title as proprietor
Section 143(2) of the Registered Land Act protects only proprietors in possession who acquired land for valuable consideration; a donee is not protected and his title may be cancelled
The court applied Section 143 of the Registered Land Act, which permits rectification where registration was obtained by fraud. The proviso protects only bona fide purchasers for value in possession. The 2nd defendant acquired the land by way of gift, giving no consideration, and therefore falls outside the protection even if innocent; his title is subject to cancellation by rectification of the register.
Limitation
The suit is an action for recovery of land governed by the 12-year period in Section 7 of the Limitation of Actions Act, running from registration of the transfer on 18 August 1999, so the suit filed in 2006 was in time
The court rejected the defendants' 3-year (tort) and 6-year (contract) limitation arguments, holding the action was founded neither on tort nor contract. It was an action to recover land and to cancel a registration, with the cause of action accruing when the land was registered in the 2nd defendant's name on 18 August 1999. Filed on 31 March 2006, the suit fell well within the 12-year period.
Whether a court order or judgment needs land control board consent
A court order or judgment does not require validation through consent of the land control board
Section 6(1) of the Land Control Act lists dealings in agricultural land requiring consent, but a court order is not among them. Holding otherwise would subordinate the court to the land control board. The argument that the Kapsabet decree required consent therefore failed, and the decree remained enforceable.
Legal principles established
#- Judgments, whether or not made out of jurisdiction, must be respected until set aside or nullified
- A court order or judgment touching agricultural land does not require the consent of the land control board
- Circumstantial evidence can suffice to establish a fraudulent transfer intended to defeat a judgment
- A proprietor who acquires land by gift is not protected under Section 143(2) of the Registered Land Act, and his title may be cancelled
Court orders
#- 1.Declaration that the transfer of land parcel Nandi/Kipkarren Salient/119 from the 1st defendant to the 2nd defendant was a fraudulent transfer
- 2.Rectification of the register of land parcel Nandi/Kipkarren Salient/119 by cancellation of the 2nd defendant as proprietor
- 3.Declaration that, flowing from the judgment and decree in Kapsabet LDT Case No. 36 of 1997, the plaintiff is entitled to 18.5 acres of land parcel Nandi/Kipkarren Salient/119
- 4.1st defendant to sign all requisite documents to transfer 18.5 acres to the plaintiff within 45 days, in default the Deputy Registrar to execute the documents, with the plaintiff bearing all conveyance fees
- 5.Plaintiff to cede possession of land parcel Nandi/Cheptil/430 to the 1st defendant upon being given possession of the 18.5 acres
- 6.Plaintiff to have costs of the suit
- Jurisdiction invoked
- Environment and Land Court Act (Act No. 19 of 2011) - original jurisdiction over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipsang Chepkwony v David Kiptoo Cheluget & another [2013] KEELC 80 (KLR)", Case Analysis (2013). E&L 245 of 2012 (Formerly HCCC 46 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/80/eng@2013-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.