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ELCAllowedNot stated in judgment· [2015] KEELC 15 (KLR)

James Kiptoo Chemjor v Simion Kiprotich [2015] KEELC 15 (KLR)

Environment and Land Court
9 October 2015
3,951 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court confirmed it can hear land disputes involving co-operative society shares, and the buyer with a clear, witnessed sale agreement and society records won a permanent injunction.

What this practically means

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Executive summary

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The plaintiff sued the defendant claiming ownership and possession of land parcel Soy/Soy Block 10(Navillus)/2975, which he purchased from Chepkonga Kigen under an agreement dated 30.12.2013 after leasing it from 2000, and sought a permanent injunction for trespass committed on 7.1.2015. The defendant claimed he bought the same parcel from Elias K. Kaino in 1997, alleged fraud against the plaintiff and the co-operative society, and objected that the court lacked jurisdiction, the dispute belonging before the Co-operative Tribunal, and that the society was not joined. The court framed six issues and first held that it had jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, finding a strong presumption in favour of civil court jurisdiction and no bar in the Co-operative Societies Act. On the evidence, officials of Ngobitwa Farmers Co-operative Society confirmed the parcel was allocated to Chepkonga Kigen, who sold it to the plaintiff; the plaintiff's sale agreement for plot 189, witnessed by the chief, was accepted as valid. The defendant's agreement with Elias Kaino was found to be a transfer of shares only, undated in substance and silent on the land, and the defendant failed to call a society official to establish ownership. Non-joinder of the society was held not fatal under Order 1 rules 9 and 10 of the Civil Procedure Rules 2010. The court entered judgment for the plaintiff, granting a permanent injunction against trespass and illegal fencing and awarding the plaintiff costs plus interest.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a dispute involving shares of a co-operative society

Holding

The court has jurisdiction; nothing in the Co-operative Societies Act ousts it, and the burden of proving exclusion of jurisdiction was not discharged.

Reasoning

Article 162(2)(b) of the Constitution and the Environment and Land Court Act confer jurisdiction over disputes relating to the use and occupation of, and title to, land. The dispute concerns title and occupation of land parcel Soy/Soy Block 10(Navillus)/2975, claimed by both parties as purchasers from shareholders of a co-operative society. The court found a strong presumption in favour of civil court jurisdiction, and that the Co-operative Societies Act contains no bar to entertaining the dispute.

p. 6
02

Whether the plaintiff proved the land belonged to Chepkonga Kigen

Holding

Yes, on a balance of probabilities; the society's officials corroborated that the parcel was allocated to Chepkonga Kigen who sold it to the plaintiff.

Reasoning

The secretary and committee members of Ngobitwa Farmers Co-operative Society confirmed that parcel 2975 was allocated to Chepkonga Kigen, who leased it to the plaintiff from 2000 and sold it to him in 2013. The agreement dated 30.12.2013 for plot 189 at Kshs.200,000 was witnessed by the chief. Receipts in the name of Chemweno Kigen were explained as shares bought on behalf of his brother Chepkonga Kigen, with no dispute between them.

p. 6
03

Whether the defendant proved a valid sale agreement with Elias K. Kaino

Holding

No; the agreement was for transfer of shares, undated as to clarity and amount, and did not disclose the land purchased.

Reasoning

The defendant's agreement with Elias Kiptoo Kaino did not indicate clearly when it was signed or how much was paid; it concerned surrender of shares rather than land, and the receipts did not identify any parcel number. The defendant failed to call an official of the society to confirm from its records who owned parcel 2975, while the society's officials who testified supported the plaintiff's case.

p. 7
04

Non-joinder of Ngobitwa Farmers Co-operative Society Ltd

Holding

Non-joinder was not fatal because the society's officials testified and it had effectively supported the plaintiff's claim.

Reasoning

The court found there was no need to enjoin the society since its officials testified and its records/decision supported the plaintiff. Order 1 rules 9 and 10 of the Civil Procedure Rules 2010 provide that no suit shall be defeated by reason of misjoinder or non-joinder of parties.

p. 8

Legal principles established

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  • There is a strong presumption that civil courts have jurisdiction to decide all disputes of a civil nature, and exclusion of such jurisdiction must be explicitly expressed or clearly implied, with the burden on the party alleging exclusion.
  • Misjoinder or non-joinder of a party does not in itself render a suit fatally defective.

Court orders

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  1. 1.A permanent injunction restraining the defendant from trespassing upon and committing trespass activities such as illegal fencing and other development activities in respect of the plaintiff's parcel No. Soy/Soy Block 10(Navillus) 2975
  2. 2.Costs of the suit plus interest awarded to the plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1) and 162(2)(b)
  • Environment and Land Court ActSection 13
  • Co-operative Societies ActNot specified
  • Civil Procedure Rules 2010Order 1 rules 9 and 10

Cases cited (1)

  • Miller Vs Minister of Pensions
    (1947) 2 ALL ER 372
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act

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, "James Kiptoo Chemjor v Simion Kiprotich [2015] KEELC 15 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/15/eng@2015-10-09

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