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ELCAllowedNot stated in the judgment· [2015] KEELC 59 (KLR)

Alice Jeptanui v Sammy Atugah Ayoro [2015] KEELC 59 (KLR)

Environment and Land Court
8 October 2015
AOAntony Ombwayo
1,657 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 after finding the owner fraudulently registered himself on someone else's family land.

What this practically means

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Executive summary

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The plaintiff, Alice Jeptanui, sued the defendant, Sammy Atugah Ayoro, over land parcel Nandi/Kapsengere/1092. She averred that the parcel was given to her family as a gift by Omonde Matara (deceased), that it was leased to the defendant in 2003, and that during the demarcation period the defendant secretly and without consent registered himself as absolute owner, conned the late Elly Nyangweso into signing an agreement dated 18.05.2005 purporting a sale, and obtained a title deed on 27.05.2011. She sought a declaration of ownership, cancellation of the title, registration in her name, and a permanent injunction. The defendant denied the lease, asserted a 1990 purchase from Elly G. Nyangweso Omonde, and denied the fraud particulars. The defendant was served but absent at the hearing on 25 September 2015, and the court proceeded ex parte. The plaintiff testified and called PW1, Willy Kipsongok Arap Morogo, who produced an agreement and sketch map and stated that Elly Nyangweso had placed a caution on the register after discovering the transfer, and that the defendant had no purchase agreement. The court framed the sole issue as whether fraud was proved to the applicable standard. Relying on Gudka v Dodhia, RG Patel v Lalji Makanji and Central Bank of Kenya v Trust Bank, the court held fraud must be strictly proved above balance of probabilities but below beyond reasonable doubt. It found the 2005 agreement ratified an illegality, referred to a non-existent parcel, and post-dated the 2003 registration, and that the defendant had no family consent. Considering sections 25 and 26 of the Land Registration Act, the court held the title was indefeasible only absent fraud, and found the registration fraudulent, illegal and/or unprocedural. The suit succeeded and the title was to be cancelled and the parcel registered in the plaintiff's name. Judgment delivered at Eldoret on 8 October 2015 by Antony Ombwayo J.

Key legal issues

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01

Whether fraud in acquisition of registered title was proved

Holding

Fraud was proved beyond a balance of probabilities; the defendant's registration was fraudulent, illegal and/or unprocedurally obtained, justifying cancellation of the title

Reasoning

The court held that fraud must be strictly proved to a standard above balance of probabilities but below beyond reasonable doubt. The plaintiff particularised the fraudulent acts and led evidence. The agreement dated 18/5/2005 purported to ratify a non-existent earlier sale of land, was executed after the defendant's 2003 registration, and evidenced payments to induce confirmation of a sale rather than a lease. The defendant did not attend or rebut the evidence.

p. 3

Legal principles established

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  • Allegations of fraud must be proved to a standard above balance of probabilities but below beyond reasonable doubt
  • A certificate of title is prima facie evidence of absolute ownership but may be challenged on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme (section 26, Land Registration Act)

Court orders

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  1. 1.Declaration that the suit parcel Nandi/Kapsengere/1092 belongs to the Plaintiff
  2. 2.Cancellation of the title deed issued on 27.05.2011
  3. 3.Registration of the said parcel in the name of the plaintiff
  4. 4.Permanent injunction restraining the defendant from entering, encroaching on or interfering with the plaintiff's quiet and lawful use and occupation of the suit land

Authorities

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Legislation

  • Land Registration Actsection 25
  • Land Registration Actsection 26

Cases cited (3)

  • Gudka -V- Dodhia
    Civil Appeal No. 21 of 1980
  • RG Patel Lalji Makanji
    [1957] EA 314
  • Central Bank of Kenya Limited -V- Trust Bank Limited & 4 Others
    Civil Appeal No. 215 of 1996 (UR)
Jurisdiction invoked
Not stated in the judgment

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, "Alice Jeptanui v Sammy Atugah Ayoro [2015] KEELC 59 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/59/eng@2015-10-08

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