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ELCPartially AllowedLand Case No. 67 of 2013· [2017] KEELC 3380 (KLR)

Paul Kipkemei Lagat & another v Henry Kaibei Chesebe [2017] KEELC 3380 (KLR)

Environment and Land Court
20 January 2017
1,768 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title registered in one man's name, ruling he held it for three co-owners and must give each their rightful share.

What this practically means

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Executive summary

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The Environment and Land Court at Kitale (E. Obaga, J) determined a dispute over LR. No. Kaisagat/Chepkoilel Block 4/Kipkoriony/6 (3.7 acres), part of the former 800-acre LR. No. 5795 (Kipkoriony Farm) owned by Daniel Yegon. The first plaintiff bought 3.7 acres comprising Plot No. 6 in 1992, sold one acre to the defendant in 1997 and two acres to the second plaintiff in 2009, retaining 0.7 acre. Under a farm resolution of 29/11/2011, where a plot had multiple occupants one person was to process title and transfer to the others; the defendant was chosen for Plot No. 6 but registered the entire 3.7 acres in his own name. The court, guided by the farm register, the area list extract, and testimony of the farm's chairman and secretary, found the defendant was not the sole beneficial owner. Although the court found no fraud in the registration - the resolution mandated it - it held the defendant was bound to transfer the respective portions. The second plaintiff, in possession since 2009, could not be evicted from land he lawfully bought. The defendant's evidence of purchasing 3.5 acres from Daniel Yego was found inconsistent with his 3.7-acre title. The court cancelled the defendant's title, directed fresh titles in the proportions held by the parties, dismissed the counter-claim, and awarded costs of both the main suit and counter-claim to the plaintiffs.

Key legal issues

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01

Whether the defendant is the sole owner of the 3.7-acre suitland

Holding

No; the suitland is beneficially owned in shares by the defendant (1 acre), second plaintiff (2 acres) and first plaintiff (0.7 acre), the defendant having been chosen to process title for all three occupants

Reasoning

The first plaintiff's evidence that the defendant was picked to process title on behalf of the three occupants of Plot No. 6 was corroborated by the farm's secretary (PW5) and chairman (PW3) and by the area list extract showing the three shares. The defendant did not deny buying one acre from the first plaintiff. His claim to have bought 3.5 acres from Daniel Yego was inconsistent with his title to 3.7 acres.

p. 3
02

Whether the second plaintiff should be evicted

Holding

No; he lawfully bought and has been in possession of his two acres since 2009

Reasoning

The sale agreement of 20/2/2009 was produced as an exhibit and the second plaintiff took possession then. The defendant first demanded vacancy only in 2013. The court noted the defendant did not explain why he was not also seeking to evict the first plaintiff if he truly owned the whole 3.7 acres.

p. 3
03

Whether the defendant was fraudulently registered as owner

Holding

No fraud found; his registration was in accordance with the farm's resolution, but he is obliged to transfer to the other occupants

Reasoning

Although the plaintiffs pleaded fraudulent registration, the court found the 29/11/2011 resolution mandated the defendant to be registered. His fault lay not in the registration but in refusing to transfer the respective portions. Consequently no fraud finding was made, but cancellation was ordered on the basis of the beneficial ownership shares.

p. 3

Legal principles established

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  • Where members of a farm agree that one occupant be registered as title-holder on behalf of all occupants, registration in his name does not confer sole ownership, and he is bound to transfer the respective portions to the other occupants

Court orders

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  1. 1.Cancellation of the defendant's title to LR. No. Kaisagat/Chepkoilel Block 4/Kipkoriony/6 and fresh titles issued in the proportions held by the plaintiffs and the defendant
  2. 2.Dismissal of the defendant's counter-claim with costs to the plaintiffs
  3. 3.Defendant to pay costs of the main suit to the plaintiffs
Jurisdiction invoked
Environment and Land Court jurisdiction (not expressly stated in judgment)

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, "Paul Kipkemei Lagat & another v Henry Kaibei Chesebe [2017] KEELC 3380 (KLR)", Case Analysis (2017). Land Case No. 67 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3380/eng@2017-01-20

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