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ELCAllowedNot stated in the judgment· [2017] KEELC 409 (KLR)

Thomas Kiprotich Kigen v Julius Kipsang Chebet & 2 others [2017] KEELC 409 (KLR)

Environment and Land Court
14 December 2017
MOM.A ODENY
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Land Court in Eldoret corrected an erroneous title showing double the allocated land, ordered the register rectified and the occupant evicted within 30 days.

What this practically means

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Executive summary

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By a plaint dated 16th May 2016, the plaintiff sued the defendants jointly and severally seeking a declaration that parcel No. KOITOROR/TUIYOLUK BLOCK 1 (KOITOROR)174 belongs to him, rectification of the 3rd defendant's (Land Registrar's) register by striking out the 2nd defendant's name and inserting his own, and an injunction against interference. The defendants, though served, filed no response and did not attend the formal proof hearing on 22nd November 2017. The plaintiff testified that members of Koitoror Farm Ltd, including his brother the 2nd defendant, were each allocated 5 acres, but the 2nd defendant's title erroneously showed 3.56 hectares (10 acres), encroaching on his parcel. He produced the Registrar's letters of 6/8/15 and 17/2/17, a copy of the register and a green card abstract. PW2 Saulo Kebeney corroborated this evidence. Counsel filed written submissions identifying two issues: ownership of the parcel and entitlement to injunction and eviction. The court, applying section 80 of the Land Registration Act, 2012, found power to order rectification where registration was obtained, made or omitted by fraud or mistake, and relied on two 2017 authorities on the court's rectification powers. Holding the claim proved on a balance of probability, judgment was entered for the plaintiff: declaration of ownership, rectification of the register, an injunction, vacation of possession within 30 days failing which eviction would issue, and costs against the defendants.

Key legal issues

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01

Rectification of the register under section 80 of the Land Registration Act, 2012

Holding

The court has power under section 80 to order rectification of the register where a registration was obtained, made or omitted by fraud or mistake; the plaintiff proved a mistake in the registration.

Reasoning

The plaintiff's uncontroverted evidence showed the 2nd defendant was allocated 5 acres but the title issued showed 3.56 hectares (10 acres), encroaching on the plaintiff's parcel. The Registrar's letters requesting rectification were produced. The court invoked section 80 and authorities confirming its power to order rectification.

p. 2
02

Standard of proof in an uncontroverted claim

Holding

The plaintiff proved his case on a balance of probability.

Reasoning

The defendants were served but filed no response and did not attend the formal proof hearing. The plaintiff testified, produced documentary exhibits (Registrar's letters, register, green card) and called a corroborating witness, so the claim stood uncontroverted.

p. 2

Legal principles established

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  • Where a claim is uncontroverted and the plaintiff proves his case on a balance of probability, judgment may be entered and the register rectified under section 80 of the Land Registration Act

Court orders

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  1. 1.A declaration that Parcel No. KOITOROR/TUIYOLUK BLOCK 1(KOITOROR)174 belongs to the plaintiff and the registration of the 1st defendant's name be rectified and be registered in the name of the plaintiff
  2. 2.That the particulars contained in the 3rd defendant's register be rectified by striking out the name of the 2nd defendant and the plaintiff's name be inserted on the parcel No. KOITOROR/TUIYOLUK BLOCK 1(KOITOROR)174
  3. 3.An order of injunction barring the 2nd defendant or any other person claiming through him from interfering with the plaintiff's right to the suit land
  4. 4.The 2nd defendant to vacate possession of the suit land within 30 days upon service of the judgment or decree, in default of which an order of eviction be issued against him
  5. 5.Defendants to pay costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 80

Cases cited (2)

  • MONIKA HERTA ELFRIECLE BEHRMANN VS MUBIA HOLDINGS LIMITED
    [2017
  • FRANCIS NYAUMA OBARE & 3 OTHERS VS MAINA MARWANGA OMWAMIRE & ANOTHER
    (2017) eKLR
Jurisdiction invoked
Section 80 of the Land Registration Act, 2012 (rectification of the register)

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, "Thomas Kiprotich Kigen v Julius Kipsang Chebet & 2 others [2017] KEELC 409 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/409/eng@2017-12-14

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