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ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 621 (KLR)

Joseph Kipchirchir Koech v Philip Cheruiyot Sang [2018] KEELC 621 (KLR)

Environment and Land Court of Kenya
16 November 2018
JOJ. M. ONYANGO
3,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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In Kenya, a registered land title wins over unproven family trust claims—claiming land is 'family property' requires solid evidence, not just assertions.

What this practically means

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Executive summary

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In this first-instance Environment and Land Court suit at Kericho, brothers litigated over L.R No. KERICHO/KAITET/460 (approx. 5.8 Ha). The Plaintiff, its registered proprietor, sued for trespass, seeking a declaration of trespass, eviction, a permanent injunction and general damages, alleging he bought the land from Kaitet Farmers' Co-operative Society (payment completed in 1983) and only permitted the Defendant temporary entry to cultivate. The Defendant defended and counterclaimed, alleging the land was family property bought by their late father Kipkoech Arap Mabwai, that the Plaintiff held it in trust, and that it should be sub-divided into two equal portions of 2.9 Ha each. The court framed five issues: proprietorship, trust, trespass, the Plaintiff's reliefs and the counterclaim. Relying on sections 24, 25(1) and 26 of the Land Registration Act, the court held the Plaintiff the absolute proprietor with an indefeasible title, noting the Defendant's own admission of the Plaintiff's registered ownership and his failure to adduce substantive evidence of trust. Applying the burden-of-proof provisions of the Evidence Act, the customary trust claim failed. The court found a continuing trespass: the Plaintiff's consent was revoked by demand letter on 24th May 2012, after which the Defendant's occupation became trespass. Trespass being actionable per se, judgment was entered for the Plaintiff: a declaration of trespass, 90 days to vacate failing which eviction could be sought, a permanent injunction, and minimal general damages of Kshs. 75,000 given the brotherly invitation. The counterclaim was dismissed, and each party was ordered to bear their own costs, the court noting this was a suit between brothers.

Key legal issues

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01

Proprietorship of L.R No. KERICHO/KAITET/460

Holding

The Plaintiff is the absolute proprietor of the suit property and entitled to protection of that title under the Land Registration Act.

Reasoning

The Plaintiff purchased the property from Kaitet Farmers Cooperative Society, completed payment in 1983 and obtained a title deed in his name. The Defendant admitted in his evidence in chief that the Plaintiff is the sole, absolute and registered owner, and produced no documents to counter the Plaintiff's evidence. The title was issued while the father was alive, and if the deceased had paid for the land it would have been registered in his name like his other parcels.

p. 4
02

Whether the Plaintiff holds the suit property in trust for the Defendant/family

Holding

The issue of trust does not arise; the Defendant failed to discharge the burden of proving family ownership or customary trust.

Reasoning

Applying sections 107(1), 109 and 112 of the Evidence Act, the burden lay on the Defendant who alleged that the property was family land bought by the deceased father and held in trust. The Defendant produced no substantive evidence, while the official search indicated the Plaintiff as the registered owner. All the evidence adduced pointed to the Plaintiff's proprietorship, so the trust claim failed.

p. 4
03

Whether the Defendant trespassed on the suit property

Holding

The Defendant's continued occupation after revocation of the Plaintiff's consent on 24th May 2012 constitutes trespass upon private land.

Reasoning

The Plaintiff admitted granting the Defendant temporary entry to cultivate food crops, and by demand letters dated 24th May 2012 and 4th June 2012 asked him to vacate. The court inferred the consent was revoked on 24th May 2012. Thereafter the Defendant had no authority to remain, and his denial of the Plaintiff's proprietorship did not negate the continuing trespass.

p. 5
04

Reliefs for the Plaintiff and disposition of the Counterclaim

Holding

Judgment entered for the Plaintiff with a declaration of trespass, eviction window, permanent injunction and minimal general damages of Kshs. 75,000; the counterclaim was dismissed.

Reasoning

Trespass to land being actionable per se, damages required no proof of specific loss. Because the Plaintiff initially invited his brother to use and cultivate the land, only minimal damages were awarded. The Defendant's counterclaim, founded on an unproven allegation of family land and trust, was dismissed on a failure of proof.

p. 5

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person under the Land Registration Act, and the title is indefeasible except on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.
  • Trespass to land is actionable per se and general damages may be awarded without proof of specific damage, to be assessed on the facts of each case.
  • Revocation of a licence by demand to vacate converts continued occupation into trespass; denial of the proprietor's right does not negate trespass.
  • He who alleges that a registered proprietor holds land in trust for others bears the burden of proving that allegation.

Court orders

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  1. 1.A declaration is hereby issued that the defendant is a trespasser on the plaintiff’s parcel of land known as L.R No. KERICHO/KAITET/460.
  2. 2.The defendant shall vacate the suit land within 90 days from the date hereof failing which the plaintiff may apply for an eviction order.
  3. 3.A permanent injunction is hereby issued restraining the defendant from remaining on, cultivating, interfering with or doing any other act which is prejudicial the plaintiff’s quiet enjoyment and occupation of L.R No. KERICHO/KAITET/460.
  4. 4.Kshs. 75,000 general damages.
  5. 5.This being a suit between brothers, each party shall bear their own costs.

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26
  • Evidence Act (Chapter 80 of the Laws of Kenya)Section 107(1)
  • Evidence Act (Chapter 80 of the Laws of Kenya)Section 109
  • Evidence Act (Chapter 80 of the Laws of Kenya)Section 112

Cases cited (3)

  • Chevron (K) Ltd (formerly known as Caltex Oil Kenya Limited) v Harrison Charo Wa Shutu
    [2016] eKLR
  • Gulam Miriam Noordin v Julis Charo Karisa
    [2015] eKLR
  • Park Towers Ltd v. John Mithamo Njika & 7 others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over land (trespass, trust and title dispute) – Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Kipchirchir Koech v Philip Cheruiyot Sang [2018] KEELC 621 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/621/eng@2018-11-16

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