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ELCAllowedLand Case No. 63 of 2011· [2016] KEELC 1177 (KLR)

Joseph K Marindich & 4 others v Reuben Yator & 13 others [2016] KEELC 1177 (KLR)

Environment and Land Court
18 January 2016
EOE. Obaga
1,082 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that farm members must refund their share of subdivision costs before they can receive their individual land titles.

What this practically means

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Executive summary

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This first-instance decision of the Environment and Land Court at Kitale concerned Ex-cullen farm near Moi's Bridge in Uasin Gishu County, comprising 1140 acres held for 323 members pursuant to a decree in Kakamega High Court Civil Case No. 230 of 1989 against Lands Limited. The land was transferred into the names of five elected trustees (the plaintiffs), who converted the registration and subdivided the farm so each member could get an individual title. The subdivision costs - stamp duty of Kshs.1,342,760, conveyancing and survey fees - were advanced by a few willing members, on the understanding that all members would refund their prorata share based on acreage before receiving titles, with the Land Registrar to issue titles only upon a clearance certificate from the farm leadership. The fourteen defendants refused to pay, alleging exploitation. The plaintiffs sued for the sums pleaded and for an order barring the defendants from obtaining titles without clearance. The defendants adduced no evidence after their counsel's adjournment application was refused and counsel walked out. The court found the trustees' expenditure proved through minutes, receipts and assessments, noted that over 200 members had paid and some defendants had since cleared their dues, and held it unfair for some members to obtain titles free at others' expense. Judgment was entered for the plaintiffs against the defendants in terms of prayers (a), (b) and (c) of the plaint. Judgment was delivered at Kitale on 18 January 2016 by E. Obaga, J.

Key legal issues

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01

Whether plaintiffs proved the expenditure incurred in subdividing and transferring the Ex-cullen farm

Holding

The plaintiffs proved, through minutes, cheques, receipts, stamp duty assessments and a survey fees agreement, that they expended money on the subdivision process as elected trustees.

Reasoning

The court found minutes of 8.5.2006 mandating the trustees, cheques and receipts (exhibit 3), stamp duty of Kshs.1,342,760 with assessment sheets, conveyancing fees of Kshs.34,000 and survey fees of Kshs.786,530. The defendants adduced no evidence, leaving the plaintiffs' account uncontroverted. The list of amounts due per member (exhibit 18) matched the plaint.

p. 2
02

Whether defendants must refund their share before being issued titles

Holding

Yes; the plaintiffs' claim was proved on a balance of probabilities and the defendants were held liable for the sums pleaded, with titles withheld pending clearance.

Reasoning

The court held it unfair for some members to obtain titles without contributing while others paid. Some defendants had already paid after the suit commenced, corroborating the legitimacy of the demand. The court allowed prayers (a), (b) and (c), entitling the plaintiffs to recover the pleaded sums.

p. 3

Legal principles established

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  • Trustees who expend money on subdivision of communal farm land on behalf of members are entitled to recover a prorata refund from each member based on acreage before the member obtains title

Court orders

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  1. 1.Judgment entered for the plaintiffs against the defendants in terms of prayers (a), (b) and (c) of the plaint, i.e. defendants to pay the sums pleaded in paragraph 9 of the plaint and not to obtain titles from the Uasin Gishu District Land Registry until they produce clearance certificates after clearing the amounts owing

Authorities

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Legislation

  • Registration of Titles Act(Now repealed)
  • Registered Land Act(Now repealed)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land matters

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, "Joseph K Marindich & 4 others v Reuben Yator & 13 others [2016] KEELC 1177 (KLR)", Case Analysis (2016). Land Case No. 63 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1177/eng@2016-01-18

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