Kiptarus Too v Kibiator Arap Rop & another [2016] KEELC 237 (KLR)
The bottom line
#A Kenyan land buyer who won a Land Disputes Tribunal award lost again in court for filing a fresh suit instead of enforcing the judgment he already had.
What this practically means
#Executive summary
#Key legal issues
#Effect of the unchallenged Land Disputes Tribunal award adopted as judgment
The Tribunal awarded the land to the plaintiff and the award was adopted as judgment of the Magistrate's Court; no appeal or judicial review was preferred, so that decision prevails and the present suit, which merely seeks to adopt it again, is superfluous; the plaintiff should execute the existing decree
The court found that although the land remains registered in the defendants' names, the Tribunal awarded it to the plaintiff and the award was adopted as judgment. Since no appeal or judicial review challenged that decision, the court has no power to adopt a magistrate's court decision afresh. Following the Supreme Court's decision in Florence Nyaboke Machani, the plaintiff must proceed to execution rather than file a duplicative suit.
Whether fraud was pleaded and proved
The issue of fraud does not arise because it was not pleaded as required by law and was not proved
The plaintiff alleged fraudulent collusion in transferring part of the suit land to the 2nd defendant, but this allegation surfaced only in submissions and was never pleaded or supported by evidence at trial. Relying on Vijay Morjaria and Ndolo v Ndolo, the court held that fraud must be specifically pleaded and distinctly proved to a standard higher than balance of probabilities, which the plaintiff failed to meet.
Ownership of the suit land on the evidence
The defendants remain the registered proprietors; the 1st defendant denied selling to the plaintiff, testifying he sold to Nelson Busienei, and the plaintiff produced no agreement, title or supporting witness
The 1st defendant testified he never sold the land to the plaintiff and never received money from him, having sold the land to Nelson Busienei in 1968 and five acres to the 2nd defendant, producing the title. The plaintiff produced no written agreement, minutes of the Tribunal or other documents, and called no witness, so his claim of purchase was unsupported by evidence.
Legal principles established
#- Once a Land Disputes Tribunal award is adopted as a judgment of a court of competent jurisdiction, it can only be varied, vacated, set aside or reviewed by the same court or an appellate court in appropriate proceedings
- Fraud must be specifically pleaded with particulars on the face of the pleading and must be distinctly proved; it cannot be left to inference
- The standard of proof in cases based on fraud is higher than a balance of probabilities, though not beyond reasonable doubt
- A party cannot canvass in a fresh suit matters already determined by a tribunal and magistrate's court where a judgment and decree exist unchallenged; the remedy is execution or a prescribed challenge
Court orders
#- 1.The suit is dismissed
- 2.Costs of the suit to the defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (Articles 22 and 23 of the Constitution and section 9 of the Law Reform Act referenced as the proper channels for challenging the Tribunal/Magistrate's Court decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiptarus Too v Kibiator Arap Rop & another [2016] KEELC 237 (KLR)", Case Analysis (2016). ELC Case at Eldoret (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/237/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.