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ELCPartially AllowedNot stated in judgment· [2016] KEELC 71 (KLR)

Elijah Kimutai Murei v Erastus Seroney Kessio [2016] KEELC 71 (KLR)

Environment and Land Court
22 November 2016
AOAntony Ombwayo
745 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret land court cancelled a title deed obtained through a manipulated survey and ordered resurvey, ruling titles must match the mutation form.

What this practically means

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Executive summary

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Elijah Kimutai Murei sued Erastus Seroney Kessio in an Environment and Land Court matter alleging that the defendant had purchased 3.5 acres from the plaintiff's family out of 1.82 Ha (approx. 4.6 acres) of Nandi/Kokwet/338, but had colluded with a private surveyor to demarcate more land than he paid for, taking advantage of the plaintiff's mother during demarcation, inducing the family to sign mutation, consent and transfer forms, and secretly procuring title deed No. Nandi/Kokwet/913 from the Kapsabet Lands Office before succession was completed. The plaintiff sought cancellation of the title, confirmation of the boundaries on the ground by the Lands Registrar, Nandi Central, and return of any land in excess of 3.5 acres. The defendant never entered appearance or filed a defence and did not attend the formal proof hearing. The plaintiff (PW1) and William Kiprop Murei (PW2) testified in support of the claim. The court found that the defendant was entitled to 1.32 Ha as per the mutation form dated 9.6.2009 and that the title document should reflect the entries on that mutation form. Judgment was entered for the plaintiff with cancellation of title Kokwet/913 and an order for resurvey so that the defendant retains 3.5 acres, with the balance registered in the names of the family of the late Malakwen Arap Singoei. In an apparent anomaly, costs were awarded to the defendant notwithstanding the finding for the plaintiff.

Key legal issues

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Whether the defendant's title exceeded the acreage sold

Holding

The defendant was entitled to 1.32 Ha as per the mutation form dated 9.6.2009, and the title document should reflect the entries on the mutation form

Reasoning

The plaintiff and PW2 testified that the family sold the defendant 3.5 acres out of 1.82 Ha (approx. 4.6 acres) of Nandi/Kokwet/338, but that the defendant, colluding with a private surveyor, demarcated more land than he paid for and obtained a title before succession was done. The court found the mutation form dated 9.6.2009 to be the governing record and held the title should conform to it.

p. 3

Legal principles established

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  • A title document should reflect the entries in the mutation form on which the transfer was founded

Court orders

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  1. 1.Judgment entered for cancellation of title Kokwet/913
  2. 2.A resurvey to be carried out to enable the defendant to own 3.5 acres of the land, with the rest registered in the name of the family members of the late Malakwen Arap Singoei
  3. 3.Costs of the suit awarded to the defendant
Jurisdiction invoked
Not expressly stated; the suit arose within the jurisdiction of the court at Kosirai, Nandtabwa village, Nandi County

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, "Elijah Kimutai Murei v Erastus Seroney Kessio [2016] KEELC 71 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/71/eng@2016-11-22

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