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ELCPartially AllowedE&L 245 of 2012 (Formerly HCCC 46 of 2006)· [2013] KEELC 80 (KLR)

Kipsang Chepkwony v David Kiptoo Cheluget & another [2013] KEELC 80 (KLR)

Environment and Land Court of Kenya
26 September 2013
8,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff sought rectification of the register and a declaration that the transfer of land parcel Nandi/Kipkarren Salient/119 from the 1st defendant to his son, the 2nd defendant, by way of gift on 18 August 1999 was fraudulent and intended to defeat a decree. The plaintiff had been awarded 18.5 acres of that parcel by the Land Disputes Tribunal in 1997; the award was adopted as judgment of the Kapsabet Principal Magistrate's Court on 24 June 1999. The 1st defendant's attempts to quash the award through judicial review and appeal failed. The defendants argued the tribunal lacked jurisdiction, rendering the award a nullity; that the suit offended Section 34 of the Civil Procedure Act; that the decree required land control board consent; and that the suit was time barred. The court held that although the tribunal lacked jurisdiction, the resulting judgment and decree subsisted and had to be respected absent a counterclaim seeking nullity. The transfer two months after adoption of the award, to the 1st defendant's adult son as a gift, was held fraudulent, circumstantial evidence sufficing. Under Section 143 of the Registered Land Act, a donee is not protected, being neither a purchaser for value nor acquiring for consideration. The suit was an action for recovery of land within the 12-year limitation period in Section 7 of the Limitation of Actions Act, and a court order requires no land control board consent. The plaintiff's suit succeeded: the transfer was declared fraudulent, the register was ordered rectified by cancellation of the 2nd defendant's registration, the plaintiff was awarded 18.5 acres, conditioned on his ceding the 6-acre Cheptil portion, with costs to the plaintiff.

Key legal issues

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01

Effect of an ultra vires tribunal award adopted as a court judgment

Holding

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

Reasoning

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.

p. 9
02

Whether the transfer to the 2nd defendant was fraudulent

Holding

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

Reasoning

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.

p. 10
03

Protection of the 2nd defendant's title as proprietor

Holding

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

Reasoning

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.

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Limitation

Holding

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

Reasoning

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.

p. 11
05

Whether a court order or judgment needs land control board consent

Holding

A court order or judgment does not require validation through consent of the land control board

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 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. 2.Rectification of the register of land parcel Nandi/Kipkarren Salient/119 by cancellation of the 2nd defendant as proprietor
  3. 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. 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. 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. 6.Plaintiff to have costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 34(1)
  • Limitation of Actions Act, CAP 22Sections 4(2), 4(4) and 7
  • Land Disputes Tribunal Act, Act No. 18 of 1990Sections 3 and 7(1)-(2)
  • Registered Land Act, Chapter 300Section 143(1)-(2)
  • Land Control Act, Chapter 302Section 6(1)-(3)
  • Environment and Land Court Act, Act No. 19 of 2011
  • Land Registration Act, 2012
  • Development and Use of Land (Planning) Regulations, 1961

Cases cited (6)

  • Suleiman vs Azzan
    (1958) EA 553
  • Cohen vs Syed Ali & Others
    (1956) EALR 161
  • Chauhan vs Omagwa
    (1985) KLR 656
  • Mathenge & Another vs Kimotho
    (1994) KLR 461
  • Omulo vs Small Enterprises Ltd
    (2005) 1 KLR 668
  • Muhia vs Mutura
    (1999) 1 EA 209
Jurisdiction invoked
Environment and Land Court Act (Act No. 19 of 2011) - original jurisdiction over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.