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ELCDismissedKericho ELC Civil Suit (plaint dated 31st July 2015)· [2018] KEELC 2431 (KLR)

Rop Albert (suing as the representative of the estate of Francis Kiprop Sanga (Deceased) & another v Gladys Koskey & 3 others [2018] KEELC 2431 (KLR)

Environment and Land Court
17 July 2018
JOJ.M. Onyango
4,631 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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A Kericho court ruled that land sold decades ago to save it from a bank auction belonged to the buyer, not the sellers' estate, and dismissed the family's fraud claim.

What this practically means

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Executive summary

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The plaintiffs, as personal representatives ad litem of the estates of Francis Kiprop Sanga and Kipkurui arap Sanga (deceased brothers jointly registered as proprietors of KERICHO/CHEMAGEL/508), sued the five defendants seeking declarations that the 2014 transfer of the title to the 1st defendant and its subdivision and transfer into five parcels was fraudulent and unlawful, cancellation of the new registers, restoration of the original register, and a perpetual injunction. The defendants maintained that the deceased sold the land to the 1st defendant and her late husband in 1992/1993 to save it from a KCB auction, that the loan was repaid by the husband, and that the 1st defendant later sold portions to the 2nd, 3rd and 4th defendants. The court framed seven issues including whether the sale occurred during the deceaseds' lifetime, the need for Land Control Board consent, proof of fraud, and bona fide purchase. It found the sale transaction genuine and uncontroverted, holding the property did not form part of the estates since the title was held by the bank. Although no Land Control Board consent could be traced in the file, the court applied Willy Kimutai Kitilit, holding the plaintiffs' fathers estopped and a constructive trust inferable from the purchasers' possession. Fraud was held unproved to the requisite standard, notably because the plaintiffs failed to sue the Land Registrar whom they instead called as a witness. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the suit property formed part of the deceaseds' estates available for distribution

Holding

The property was sold during the proprietors' lifetime to save it from a bank auction; it did not form part of the estates

Reasoning

The green card showed a 1989 charge to KCB, discharged only after the 1st defendant's husband paid the outstanding loan. The 1st defendant's evidence of purchase in 1992/1993 was uncontroverted. Had letters of administration been taken out, the property would have been a liability of the estates, not an asset, since it stood charged to the bank.

p. 4
02

Whether absence of Land Control Board consent invalidated the sale

Holding

Although consent was not produced, estoppel and constructive trust preclude the vendors' estates from invalidating the sale

Reasoning

Following Willy Kimutai Kitilit, equity as entrenched in Article 10 of the Constitution allows constructive trust and estoppel to supersede section 6(1) of the Land Control Act where a purchaser was put in possession. The plaintiffs' fathers put the 1st defendant in possession after her husband paid off the KCB loan, so they are estopped from relying on the lack of consent.

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Whether fraud was proved against the defendants and the Land Registrar

Holding

Fraud was not proved; plaintiffs failed to join the Land Registrar who was central to every alleged act of fraud

Reasoning

Fraud must be pleaded, particularised and strictly proved. The delays in transfer were explained by the 1st defendant's relocation to the United States. The plaintiffs' failure to enjoin the Land Registrar, whom they instead called as their witness, was telling. The claim of collusion was therefore unconvincing.

p. 6
04

Whether the 2nd, 3rd and 4th defendants were bona fide purchasers for value without notice

Holding

The delay in transfer was not fraudulent; allowing the estates to reclaim the land would be unjust enrichment

Reasoning

The 1st defendant had capacity to sell portions after taking possession, and the purchasers took possession of their portions. The plaintiffs cannot benefit from the delay merely because the title remained in their fathers' names though disposed of during their lifetime.

p. 6

Legal principles established

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  • Allegations of fraud must be specifically pleaded, particularised and strictly proved to a standard higher than a balance of probabilities
  • Equitable doctrines of constructive trust and estoppel can apply to a contract rendered void by lack of Land Control Board consent where the vendor has put the purchaser in possession

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Land Control Act, Cap 302section 6(1)
  • Constitution of Kenya, 2010Article 10(1)(b), 10(2)(b), 159(2)(e); Sixth Schedule section 7 (Transitional and Consequential Provisions)

Cases cited (7)

  • David Sironga ole Tukai versus Francis Arap Muge & 2 others
    Nairobi Civil Appeal number 76 of 2014
  • Hirani Ngaite Githire versus Wanjiku Munge
    (1979) KLR 50
  • Willy Kimutai Kitilit V Michael Kibet
    Civil Appeal No. 51 of 2015 (Eldoret)
  • Koinange & 13 Others V. Charles Karuga Koinange
    1986 KLR at page 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)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over title to land (KERICHO/CHEMAGEL/508 and its subdivisions)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Rop Albert (suing as the representative of the estate of Francis Kiprop Sanga (Deceased) & another v Gladys Koskey & 3 others [2018] KEELC 2431 (KLR)", Case Analysis (2018). Kericho ELC Civil Suit (plaint dated 31st July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2431/eng@2018-07-17

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