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ELCAllowedTransmara/Olosokwan/1117 suit (Plaint dated 8th June 2005)· [2018] KEELC 2772 (KLR)

Kipngeny Marisin v Christopher Siwon & 27 others [2018] KEELC 2772 (KLR)

High Court of Kenya
20 June 2018
4,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The High Court cancelled land titles obtained without a proper sale agreement or Land Control Board consent, returning the land to its original owner.

What this practically means

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Executive summary

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By a Plaint dated 8th June 2005, the Plaintiff, registered owner of land parcel Transmara/Olosokwan/1117, sued 27 individuals and the Land Adjudication Officer, alleging that in about 2002 they colluded to excise 40 acres from his parcel without his knowledge or consent, the Defendants having had only temporary grazing rights. He sought a declaration that the Defendants' registration was illegal, cancellation of the registration, and costs. The Defendants denied collusion, asserting a valid sale agreement dated 5th September 1997 for Kshs 250,000, attested before the Assistant Chief, under which they purchased the land as a block through their agent Samuel Kipkirui Byegon, upon which they obtained titles. The court framed two issues: whether there was a valid contract, and whether the Plaintiff was entitled to the reliefs sought. The court found the agreement suspicious: the Assistant Chief signed three days after the parties; the agent signed for all purchasers without any evidence of agency such as a Power of Attorney; no Land Control Board consent was obtained for the agricultural land as required by section 6 of the Land Control Act, rendering the transaction void for all purposes; and no evidence of payment of the consideration was produced. Citing authorities including Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna on section 26 of the Land Registration Act, the court held that a title, even in innocent hands, is impeachable where obtained illegally, unprocedurally or through a corrupt scheme. The Plaintiff proved his case on a balance of probabilities. Judgment was entered for the Plaintiff: a declaration of illegality, cancellation of the Defendants' registration, reversion of the suit property to the Plaintiff, restoration of the register by the Land Registrar, and costs against the Defendants jointly and severally.

Key legal issues

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01

Whether there was a valid contract of sale between the Plaintiff and the Defendants

Holding

No valid contract existed; the agreement failed the requirements of section 3(3) of the Law of Contract Act, was not properly executed by all purchasers, no Land Control Board consent was obtained, and payment of the consideration was not proved.

Reasoning

The agreement dated 5th September 1997 was suspicious: the Assistant Chief signed on 8th September though allegedly present on 5th; Samuel Yegon signed for all purchasers without any evidence of agency such as a Power of Attorney. The land was agricultural and no Land Control Board consent was obtained within six months, rendering the transaction void under section 6 of the Land Control Act. No receipts or evidence of payment of Kshs 250,000 were produced, and the burden of proof lay on the Defendants.

p. 6
02

Whether the titles issued to the Defendants following the excision of 40 acres are valid

Holding

The Land Adjudication and Settlement Officer exceeded his powers in allocating 40 acres of the suit land to the Defendants without legal basis; the titles are illegal and liable to cancellation.

Reasoning

Relying on section 26(1)(a) and (b) of the Land Registration Act as interpreted in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna, the court held that a title, even in the hands of an innocent holder, is impeachable where obtained illegally, unprocedurally or through a corrupt scheme. Since the excision and registration had no legal basis, the indefeasibility of the Defendants' titles fell away and the register was to be restored to the Plaintiff.

p. 6
03

Whether the Plaintiff is entitled to the reliefs sought

Holding

The Plaintiff proved his case on a balance of probabilities and was granted the declaration and cancellation of registration sought.

Reasoning

Having found no valid contract and an unlawful excision, the court held the Plaintiff had discharged the burden of proof on a balance of probabilities. The court granted the two substantive prayers in the Plaint: a declaration of illegality of the registration and cancellation of the registration, with consequential orders to the Land Registrar, plus costs against the Defendants.

p. 7

Legal principles established

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  • A title may be impugned notwithstanding the indefeasibility of title where it is shown that the title was obtained illegally, unprocedurally or through a corrupt scheme, even if the title holder was innocent
  • Failure to obtain Land Control Board consent for a controlled dealing in agricultural land renders the transaction void for all purposes

Court orders

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  1. 1.A declaration that the purported registration of defendants no. 1 to 27 as owners of land parcel no. Transmara/Olosakwana/1117 is illegal and wrongful
  2. 2.The registration of the defendants no. 1-27 is cancelled on the ground that the Land Adjudication Officer (defendant No. 28) exceeded his powers; the suit property shall revert to the name of the Plaintiff
  3. 3.A copy of the judgment to be served on the Land Registrar to effect the necessary changes and restore the register of land parcel no. Transmara/Olosakwan/1117 in the name of the Plaintiff
  4. 4.Costs of the suit borne by the defendants jointly and severally

Authorities

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Legislation

  • Law of Contract Act, Cap 23section 3(3), 3(7)
  • Land Control Act, Cap 302section 6(1), 6(3)
  • Land Registration Actsection 26(1)(a) and (b)

Cases cited (11)

  • Lickiss v Milestone Motor Policies at Lloyd's
    (1996) 2 All ER 972
  • Leaf v International Galleries
  • Pauline Wambui Ngari v John Kairu & Another
    [1997] eKLR
  • Obiero v Opiyo
    [1972] EA 227
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Rose Wakanyi Karanja & 3 others v Geoffrey Chege Kirundi & another
    [2016] eKLR
  • Karuri v Gituru
  • Hirani Ngaithe Githire v Wanjiku Munge
    [1979] KLR 50
  • Onyango & Another v Luwayi
    [1986] KLR 513
  • Purple Rose Trading Company Limited v Bhanoo Shashikant Jai
    [2014] eKLR
  • Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another
    (2013) eKLR
Jurisdiction invoked
Original civil jurisdiction over a land dispute; suit commenced by Plaint dated 8th June 2005

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, "Kipngeny Marisin v Christopher Siwon & 27 others [2018] KEELC 2772 (KLR)", Case Analysis (2018). Transmara/Olosokwan/1117 suit (Plaint dated 8th June 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2772/eng@2018-06-20

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