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ELCDismissedNot stated in the judgment· [2016] KEELC 622 (KLR)

Philemon Kipkosgei & 2 others v Marakwet Teachers Housing Co-operative Society Limited [2016] KEELC 622 (KLR)

Environment and Land Court
17 August 2016
AOAntony Ombwayo
1,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Kenyan court dismissed an eviction suit because a register showed Government acquisition of the land, and the family never involved the Attorney General or produced the title deed.

What this practically means

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Executive summary

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Three plaintiffs, suing as representatives of the estate of Chepkiyeng Katam (deceased), sued Marakwet Teachers Housing Co-operative Society Ltd seeking eviction of the defendant from land title No. Moiben/Kapsowor/67. The plaintiffs claimed the land was registered in the deceased's name in 1977 and that the defendant and third parties had unlawfully dealt with, allocated, sold, occupied and developed it, intermeddling with the estate contrary to the Law of Succession Act and the Land Registration Act. They relied on certificates of official search of 2010 and 2014 confirming the deceased as registered proprietor, a certificate of confirmation of grant dated 26 May 2014 distributing the land among the plaintiffs, and a letter dated 20 September 2010 in which the defendant allegedly made partial payments before defaulting. The defendant was served but neither entered appearance nor filed a defence. At the hearing the plaintiffs' witness produced the searches and the confirmed grant. The court held that although the suit was undefended, the register carried a restriction stating that the land had been acquired by the Government in 1989 for Kapsowar Divisional Headquarters pursuant to a District Officer's letter of 16 January 1989. The Attorney General had not been enjoined, the plaintiffs had not clarified the acquisition issue, and the title deed was not produced. The court therefore found the plaintiffs had not proved their case on a balance of probabilities, declined the prayers sought, dismissed the suit with no orders as to costs.

Key legal issues

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Proof of the plaintiff's claim in an undefended suit

Holding

The court declined the prayers sought because the plaintiffs did not prove their case on a balance of probabilities notwithstanding the defendant's non-appearance

Reasoning

The court noted that although the suit was undefended, the certificates of official search showed a restriction indicating the land had been acquired by the Government in 1989 for Kapsowar Divisional Headquarters. The Attorney General, who would be the proper party on the acquisition question, was not enjoined. The plaintiffs also failed to produce the title deed to the suit property. In those circumstances the plaintiffs' claim of ownership and entitlement to eviction was not proved to the required standard, and the claim failed.

p. 2

Legal principles established

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  • A plaintiff in an undefended land suit must still prove his case on a balance of probabilities; where compulsory acquisition by the Government is suggested on the register and the Attorney General is not a party and the title deed is not produced, eviction will be refused

Court orders

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  1. 1.The suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Law of Succession ActNot specified
  • Land Registration ActNot specified
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to registered land (suit land Title No. Moiben/Kapsowor/67)

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, "Philemon Kipkosgei & 2 others v Marakwet Teachers Housing Co-operative Society Limited [2016] KEELC 622 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/622/eng@2016-08-17

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