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ELCPartially AllowedELC Cause No. 262 of 2017· [2018] KEELC 903 (KLR)

Erick Kiplangat Cheruyoit v Richard Masoi & 33 others [2018] KEELC 903 (KLR)

Environment and Land Court
1 November 2018
MKMohamed N. Kullow
1,502 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land buyers through an agent must prove the agent's authority covered the exact parcel sold, or they are trespassers.

What this practically means

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Executive summary

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The Plaintiff sued 34 Defendants for eviction, a permanent injunction and costs over land parcel Cis Mara/Olpusimoru/428, alleging that although he purchased the land in January 2013 from the estate of the late Kipngeno Arap Ngeny through Elizabeth Chepkirui Ngeny, who held a Power of Attorney, the Defendants illegally entered and occupied the land in September 2013. The Defendants denied the claim and counter-claimed, asserting that between 2010 and 2013 they bought the land from the late Ngeny through the 1st Defendant as his agent, took possession, and sought a declaration that they were the rightful owners and cancellation of the Plaintiff's title. At trial, the Plaintiff and his witnesses, including the vendor's daughter and the vendor's advocate Mr. Sigira, established the sale, transfer and registration, and confirmed that the 1st Defendant's Power of Attorney related to different parcels (Nakuru/Olengurian/Amalo 314, 315 and 316) and not the suit land. The court framed three issues: the validity of the Power of Attorney, lawful ownership, and trespass. It found the Plaintiff had proved his case on a balance of probabilities as registered owner, and that the Defendants had no authority to remain on the land. Judgment was entered for the Plaintiff with a permanent injunction, an order that the Defendants vacate within 90 days failing which eviction would issue under section 152 of the Land Act, 2016, and costs to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff proved ownership of the suit land

Holding

The Plaintiff, as registered owner with a certificate of title following due diligence and Land Control Board consent, proved his case on a balance of probabilities

Reasoning

The Plaintiff produced a sale agreement, registered Power of Attorney, Land Control Board consent and certificate of title. The 1st Defendant's own Power of Attorney covered different parcels (Nakuru/Olengurian/Amalo 314, 315 and 316), not the suit land, and the vendor's advocate confirmed the suit land was sold to the Plaintiff. The Defendants therefore had no authority to occupy the land, and their counter-claim fails.

p. 2
02

Whether the Defendants are trespassers

Holding

Yes - having no authority to live on the land, their entry and occupation constituted trespass warranting injunction and eviction

Reasoning

Despite the Plaintiff's registration and transfer, the Defendants entered and remained in occupation in September 2013 without his authority. Since they could not establish a superior title or the 1st Defendant's authority to sell the suit land, their occupation was unlawful and justified a permanent injunction and an order to vacate within 90 days, failing which eviction under section 152 of the Land Act, 2016.

p. 2

Legal principles established

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  • A party claiming under an agent must prove the agent's authority extended to the specific land transacted; a Power of Attorney limited to other parcels confers no authority over the suit land

Court orders

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  1. 1.An order of permanent injunction restraining the Defendants by themselves, agents or servants from ploughing, cultivating, entering, trespassing and constructing on the suit land
  2. 2.The Defendants to vacate the suit land within 90 days from the date of judgment, in default eviction orders to issue in accordance with section 152 of the Land Act, 2016
  3. 3.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Actsection 152
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership, title and occupation of land

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, "Erick Kiplangat Cheruyoit v Richard Masoi & 33 others [2018] KEELC 903 (KLR)", Case Analysis (2018). ELC Cause No. 262 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/903/eng@2018-11-01

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