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ELCPartially AllowedNot stated in the judgment· [2014] KEELC 73 (KLR)

Solomon K. Songok v Susan Jepkosgei [2014] KEELC 73 (KLR)

Environment and Land Court
27 November 2014
1,278 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court cancelled a land title obtained fraudulently, confirming a title acquired illegally can be taken away.

What this practically means

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Executive summary

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This was an uncontested first-instance suit before the Environment and Land Court at Eldoret concerning plot Eldoret Municipality Block 15/829. The plaintiff pleaded that the Municipal Council of Eldoret allotted him the plot in 1986 and issued him an allotment letter, that he paid the requisite Kshs. 1,000 and rates, and constructed on the plot. On returning from the United States in 2010, he found a lease registered in the defendant's name on 7 February 2011, which he alleged was fraudulently and illegally obtained. He sought revocation of the defendant's title, issuance of a proper title to him, a permanent injunction against the defendant, and costs. The defendant was served with summons and hearing notices but neither entered appearance, filed a defence, nor appeared at the hearing. The plaintiff testified and called two witnesses, including the County Legal Officer of Uasin Gishu County, who produced the original file and confirmed the plaintiff as the allottee with no record of any lease to the defendant, and the County Land Registrar, who confirmed the lease registered in the defendant's favour. Holding that Municipal Councils are defunct under the Constitution of Kenya, 2010 and their functions now vest in County Governments, the court found the plaintiff to be the legitimate allottee and the defendant's title unexplained and therefore illegal, unprocedurally obtained, or probably the product of a corrupt scheme. Relying on Section 26 of the Land Registration Act, the court cancelled the defendant's lease and leasehold title, directed the County Government of Uasin Gishu to draw a lease in favour of the plaintiff and the Land Registrar to register it and issue him a Certificate of Lease, and ordered the defendant to bear the costs.

Key legal issues

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01

Validity of the defendant's lease over the suit land

Holding

The defendant's lease was illegally and unprocedurally obtained and was cancelled

Reasoning

The plaintiff proved an allotment from the Municipal Council of Eldoret in 1986, payment of the consideration and rates, and development on the plot. The County Government's records recognized only the plaintiff as allottee, with no record of any lease to the defendant. The defendant, though served, never entered appearance or tendered any evidence explaining her acquisition of title. The court therefore concluded her title could only have arisen from fraud, illegality, unprocedural acquisition or a corrupt scheme, making it liable to cancellation under Section 26 of the Land Registration Act.

p. 3
02

Entitlement of the plaintiff to be registered as lessee

Holding

The plaintiff was held to be the legitimate proprietor and a lease was directed to be drawn and registered in his favour

Reasoning

The evidence of PW-2, the County Legal Officer who produced the original file, confirmed that the plaintiff was the allottee and holder of the allotment letter. PW-3, the County Land Registrar, explained that the lease in the register was one prepared by the Municipal Council as lessor. With no contrary evidence, the court accepted the plaintiff's uncontroverted testimony and directed the County Government of Uasin Gishu to draw a lease in his favour, the Land Registrar to register it, register him as lessee, and issue a Certificate of Lease.

p. 3

Legal principles established

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  • A title acquired illegally, unprocedurally or through a corrupt scheme, or through fraud or misrepresentation to which the holder is a party, is not indefeasible and is liable to cancellation under Section 26 of the Land Registration Act
  • A defendant who produces no evidence to demonstrate how title was obtained, against uncontroverted evidence of the true allottee, risks cancellation of that title

Court orders

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  1. 1.Cancellation of the lease purportedly issued to the defendant
  2. 2.Cancellation of the defendant's leasehold title over the suit land
  3. 3.Direction to the County Government of Uasin Gishu to draw a lease in favour of the plaintiff
  4. 4.Direction to the Land Registrar Uasin Gishu County to register such lease, register the plaintiff as lessee of the suit land, and issue the plaintiff with a Certificate of Lease
  5. 5.The defendant to bear the costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26(1) and 26(2)
  • Constitution of Kenya, 2010General (devolution of former municipal council functions to county governments)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land; Land Registration Act, Act No. 3 of 2012, Section 26

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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

Cite this brief

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Cite this brief

Caselaw, "Solomon K. Songok v Susan Jepkosgei [2014] KEELC 73 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/73/eng@2014-11-27

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