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ELCPartially Allowed· [2018] KEELC 1253 (KLR)

Simon Mutai Kiprotich v John A Towett [2018] KEELC 1253 (KLR)

Environment and Land Court
19 October 2018
JOJ. M. Onyango
2,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a land title registered in one name alone, ruling both joint buyers own the property in equal shares.

What this practically means

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Executive summary

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By a plaint dated 18th July 2014, the Plaintiff claimed a half share in L.R. NO. KERICHO/OLOKYIN/1411, alleging that although the parties had jointly purchased the suit land in 2011 for Kshs. 290,000 under a written sale agreement witnessed by six persons, the Defendant fraudulently registered it in his sole name. He sought cancellation of the title, eviction of the Defendant from his half share, costs and any other relief. The Defendant denied fraud, asserting an oral agreement under which the Plaintiff relinquished his interest in exchange for the Defendant paying the Plaintiff's creditors, and relied on section 26 of the Land Registration Act (indefeasibility of title) and the burden of proving fraud under sections 107 and 116 of the Evidence Act. The Plaintiff, relying on section 3(3) of the Law of Contract Act and section 91(6) of the Land Registration Act, contended that the alleged oral transfer was unenforceable and that no written consent existed for dealing with a tenancy in common. The court framed two issues: whether a valid sale agreement transferring the Plaintiff's share existed, and whether the title was fraudulently obtained. Applying section 38 of the Land Act, 2012 alongside section 3(3) of the Law of Contract Act, the court found no valid written contract for the transfer and held that the Defendant's omission of the Plaintiff's name during registration amounted to fraud. Judgment was entered for the Plaintiff: the title was cancelled, the parties were to be registered as tenants in common in equal shares (or the land subdivided into two equal portions), the Defendant to vacate the Plaintiff's share, and the Defendant to bear the costs of the suit.

Key legal issues

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01

Whether there was a valid sale agreement transferring the Plaintiff's share to the Defendant

Holding

There was no valid contract for the plaintiff to relinquish or transfer his share; the alleged oral agreement was unenforceable under section 3(3) of the Law of Contract Act and section 38 of the Land Act, 2012.

Reasoning

Section 3(3) of the Law of Contract Act and section 38 of the Land Act, 2012 require a contract for the disposition of an interest in land to be in writing, signed by all parties and attested by a witness. The only written agreement was the original joint purchase agreement with the vendor, witnessed by six persons. The defendant's alleged oral acquisition of the plaintiff's share did not meet this statutory threshold and was therefore invalid.

p. 4
02

Whether the title to the suit land was obtained fraudulently

Holding

Yes. The defendant's omission of the plaintiff's name as tenant in common during the transfer and registration of the title in his sole name was a misrepresentation amounting to fraud.

Reasoning

Having found no valid contract transferring the plaintiff's share, the court held that registering the title in the defendant's sole name was an attempt to unlawfully claim absolute ownership to the exclusion of the plaintiff. This conduct was unlawful and constituted fraud, notwithstanding the defendant's reliance on the prima facie indefeasibility of title under section 26 of the Land Registration Act, since fraud is an exception to that protection.

p. 4

Legal principles established

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  • No suit may be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties and the signatures attested by a witness; a verbal understanding fails to meet the threshold of a contract for sale or transfer of land.
  • Registering joint property in a sole name to the exclusion of a co-purchaser, without a valid written contract of transfer, is a misrepresentation amounting to fraud.

Court orders

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  1. 1.Title to L.R. NO. KERICHO/OLOKYIN/1411 be cancelled forthwith.
  2. 2.The Plaintiff and the Defendant be registered as tenants in common to L.R. NO. KERICHO/OLOKYIN/1411 divided in equal shares between the two or alternatively, the said parcel of land be sub-divided into two equal portions and the plaintiff and defendant be issued with titles in their separate names.
  3. 3.Upon issuance of the two titles the defendant shall vacate the plaintiff's share of land forthwith.
  4. 4.The costs of this suit shall be borne by the Defendant.

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Land Registration Act, 2012Section 91(6)
  • Land Registration ActSection 26
  • Evidence Act CAP 80 Laws of KenyaSections 107 and 116
  • Land Act, 2012Section 38

Cases cited (3)

  • Patrick Tarzan Matu & Another –vs- Nassim Shariff Abdulla & 2 Others
    [2009] eKLR
  • Denis Noel Mukhulo Ochwada & another v Elizabeth Murungari Njoroge & another
    [2018] eKLR
  • R.G. Patel v. Lalji Makanji
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to ownership of land (L.R. NO. KERICHO/OLOKYIN/1411)

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, "Simon Mutai Kiprotich v John A Towett [2018] KEELC 1253 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1253/eng@2018-10-19

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