David K. Bett v Samson Kipkemboi [2018] KEELC 827 (KLR)
The bottom line
#A Kenyan court dismissed a man's land claim because his name was missing from the official list of allottees.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved ownership/allotment of Plot No. 51
The plaintiff failed to prove on a balance of probabilities that he was allotted Plot No. 51; his name did not appear in the certified final list of 706 allottees and the list contained a different person, David Kipkoech Bett
The court relied on the certified list dated 2.8.2002 described by the then District Commissioner as the final list, which had 706 members and did not contain the plaintiff's name. The plaintiff's allotment letter measured the land in hectares while all other allotments were in acres, and an administrative officer testified she could not distinguish the authentic letter from the fake. The plaintiff also sold or purported to sell the land to a third party.
Whether Plot No. 51 and Plot No. 55 are one and the same parcel
They are separate plots of unregistered land; Plot No. 55 was allocated to the defendant and Plot No. 51 to Sammy Kibiwot
The court found the surveyor's report showed two distinct provisional plots (6.34 and 6.66 acres on the map) with no distinct boundary separating them, but that each had its own allotment letter and separate allottees. There being no letter of allocation of Plot No. 55 to the plaintiff, he could not claim the plots were one and the same. Plot No. 55 was the defendant's allotment.
Whether the Land Registration Act (ss. 24, 25, 26) conferred indefeasible title on the plaintiff
The Act did not apply because the land remained unregistered, degazettement of the forest had not occurred and no registers had been opened
Counsel for the plaintiff argued indefeasibility under sections 24, 25 and 26 of the Land Registration Act. The court held these provisions presuppose registration, yet the suit land was still gazetted government forest, unregistered, with no registered proprietor and no open register; hence the submissions were not tenable in law.
The defendant's counterclaim
The counterclaim succeeded; a permanent injunction was issued against the plaintiff and the defendant was allowed to re-establish the boundary and fence
Having established that he was the allottee of Plot No. 55 and that the plaintiff had encroached, destroyed beacons and fencing, the defendant was entitled to the injunctive and restorative relief sought in the counterclaim. Plot No. 51 was found to belong to Sammy Kibiwot, who was not a party, so no order could issue in respect of it.
Legal principles established
#- An allotment of unregistered government land cannot confer the indefeasibility protections of the Land Registration Act where the land has not been degazetted and registers opened under that Act
- A claimant's entitlement to allocated scheme land must be proved against the official list of allottees prepared by the allocating authority
- No adverse order may be made against a person who is not a party to the proceedings
Court orders
#- 1.The plaintiff's suit is dismissed with costs
- 2.A permanent injunction is issued against the plaintiff, his servants, agents and any other person through whom he may act against trespassing, destroying fences, uprooting beacons, ploughing, planting, harvesting, grazing, transferring, selling, leasing and/or in any other way dealing with Plot No. 55 Chepkumia under the Chepkumia Land Exchange Programme
- 3.The defendant is allowed to re-establish the boundary and fence
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to title to and occupation of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David K. Bett v Samson Kipkemboi [2018] KEELC 827 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/827/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.