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ELCPartially AllowedKericho High Court Civil Suit (as per Plaint dated 8th March 2007) - Environment and Land Court, Kericho· [2018] KEELC 1921 (KLR)

Lucio Matingwony (Suing as the Administratrix of the Estate of Kimalel Matingwony (Deceased) v Kipkemoi Rop & 6 others [2018] KEELC 1921 (KLR)

Environment and Land Court of Kenya (High Court)
14 September 2018
JOJ. M. Onyango
6,304 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 land titles obtained through fraud, proving that even registered title can fall if acquired dishonestly.

What this practically means

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Executive summary

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The plaintiff, as Administratrix of the estate of Kimalel Matingwony (deceased), sued the 1st defendant (administrator of the estate of Seronei Rop) and four others over land parcels arising from L.R NO. KERICHO/KABIANGA/1128 and 1129. She alleged that the registers of the two parcels were fraudulently altered - her husband's parcel 1129 reduced from 6.8 to 2.0 hectares and 1128 enhanced from 8.4 to 13.2 hectares - followed by a sub-division of 1128 into parcels 2406 and 2407. She sought a declaration that 4.8 hectares of the subdivided land belonged to the estate, rectification of the registers, a perpetual injunction and costs. The 1st defendant counterclaimed, alleging the plaintiff had encroached on parcel 2407. The court held that allegations of fraud must be pleaded and proved to a standard above a balance of probabilities, and found the standard met: the register alterations were undated and unexplained, the mutation forms were unstamped photocopies that registry officials could not authenticate, the Registry Index Maps were never amended, and the 1st defendant's account of how the land was acquired was contradictory. The suit was held not statute-barred because limitation runs from discovery of fraud under section 26(a) of the Limitation of Actions Act. The titles to parcels 2406 and 2407 were found impeachable under section 26(1) of the Land Registration Act. Judgment was entered for the plaintiff: a declaration of ownership of the 4.8 hectares, cancellation of the two titles and restoration of the original registers, a perpetual injunction, and costs against the defendants; the 1st defendant's counterclaim was dismissed with costs.

Key legal issues

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01

Whether the alterations to the registers of KERICHO/KABIANGA/1128 and 1129 and the resultant sub-divisions were fraudulent

Holding

Yes - fraud was proved against the 1st defendant's father and the 4th defendant to the required standard

Reasoning

The register alterations were undated, their purpose unrecorded, and unsupported by mutation forms, transfer documents or Land Control Board consents. The mutation forms produced were unstamped photocopies whose authenticity officials could not vouch for. The RIM was never amended, and the 1st defendant's own evidence on how his father acquired the land was contradictory and inconsistent with his pleadings and with the succession proceedings.

p. 7
02

Whether the plaintiff's suit was statute-barred under the Limitation of Actions Act

Holding

No - time began to run on discovery of the fraud

Reasoning

Section 26(a) of the Limitation of Actions Act provides that where an action is based on fraud, limitation does not run until the plaintiff discovered or could with reasonable diligence have discovered the fraud. The plaintiff testified she discovered the fraud in 1997 and the suit followed.

p. 7
03

Whether the titles to parcels 2406 and 2407, though registered, could be cancelled

Holding

Yes - they fall within the section 26 Land Registration Act exceptions to indefeasibility

Reasoning

While the law is protective of title, section 26(1) permits challenge where the title was acquired by fraud or misrepresentation to which the proprietor is a party, or illegally, unprocedurally or through a corrupt scheme. The fraudulent chain began with the register alterations and continued through the sub-division and transfers, so the resulting titles were impeachable.

p. 8

Legal principles established

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  • Allegations of fraud must be strictly proved to a standard higher than a balance of probabilities, though not beyond reasonable doubt
  • Possession of a certificate of title alone is insufficient; a party must demonstrate through evidence that the title was properly acquired
  • A title procured by fraud or misrepresentation is impeachable under section 26(1)(a) of the Land Registration Act and cannot be allowed to stand

Court orders

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  1. 1.A declaration that the 4.8 hectares of land comprised in KERICHO/KABIANGA/2406 or 2407 previously comprised in KERICHO/KABIANGA/1128 lawfully belongs to the plaintiff in her capacity as Administratrix of the estate of Kimalel Matingwony (deceased)
  2. 2.The Land Registrar Kericho to forthwith rectify the registers by cancelling the titles to parcels KERICHO/KABIANGA/2406 and 2407 and restoring the registers and titles of parcels KERICHO/KABIANGA/1128 and 1129 to their pre-sub-division position, reflecting 6.8 hectares and 8.4 hectares respectively
  3. 3.A perpetual injunction restraining the defendants, their agents and/or servants from entering and/or remaining on land parcel number KERICHO/KABIANGA/1129
  4. 4.The 1st defendant's counterclaim is dismissed with costs
  5. 5.The costs of the suit shall be borne by the defendants

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22 Laws of Kenyasection 26(a)
  • Land Registration Actsection 26(1)(a) and (b)

Cases cited (9)

  • Koinange & 13 Others v Charles Karuga Koinange
    1986 KLR 23
  • Ratilal Patel Makanji
    (1957) EA 314
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR (Civil Appeal No. 106 of 2000)
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR (Civil Appeal No. 132 of 2005)
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR, Civil Appeal No. 246 of 2013
  • Daudi Kiptugen v Commissioner of Lands Nairobi & 4 others
    [2015] eKLR
  • Elijah Makeri Nyangwra v Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Insurance Company of East Africa v The Attorney General & 3 Others
    HCCC 135/1998
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court) - claim for declaration, rectification of register and perpetual injunction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Lucio Matingwony (Suing as the Administratrix of the Estate of Kimalel Matingwony (Deceased) v Kipkemoi Rop & 6 others [2018] KEELC 1921 (KLR)", Case Analysis (2018). Kericho High Court Civil Suit (as per Plaint dated 8th March 2007) - Environment and Land Court, Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1921/eng@2018-09-14

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