Prisila Jesondin Chumo v Nelly Jebor (Environment & Land Case 113 of 2016) [2018] KEELC 2954 (KLR)
The bottom line
#An Eldoret court confirmed a registered landowner's title is king unless fraud is proved, and a daughter-in-law claiming customary rights must provide solid evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff holds an indefeasible title
Yes; the plaintiff was registered by transmission after succession and there was no evidence of fraud, misrepresentation or encumbrance
The court found it undisputed that the plaintiff was registered as owner via transmission following grant of letters of administration over her late husband's estate. No evidence showed fraudulent registration, and the title produced had no encumbrance, caution or restriction. Under sections 24, 25 and 26 of the Land Registration Act, her registration is therefore indefeasible.
Whether the plaintiff held the land in trust (including customary trust) for the defendant
No; the defendant failed to prove the alleged trust or her marriage to the plaintiff's son
Although Section 28 of the Land Registration Act recognizes trusts including customary trusts as overriding interests, the party alleging the trust must prove it. The defendant led no evidence of the trust; her marriage to the plaintiff's son was not fortified by evidence, and the plaintiff testified the son was married to one Hellen Chepkosgei whose three children are provided for in the estate. The defendant's objection to the succession cause was dismissed and she did not appeal.
Whether the court could grant the defendant a share of the land
No; no counterclaim was filed
The defence asserted entitlement to a portion of the land and a determination of the children's shares, but no counterclaim was filed. The court therefore could not grant orders in respect of rights not properly pleaded before it.
Whether mesne profits were payable
No; not specifically pleaded or proved
Mesne profits are special damages which must be specifically pleaded and specifically proved. The plaintiff did not state the amount claimed in the plaint nor lead evidence proving the loss, so that limb of the claim failed.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- Trusts, including customary trusts, are overriding interests under Section 28 of the Land Registration Act that need not be noted on the register but must be proved by the person alleging them
Court orders
#- 1.A declaration that the plaintiff is the absolute registered owner of TURBO EAST/SOSIAN BLOCK I (SUGOI) 12 and that the defendant is a trespasser
- 2.The defendant to give vacant possession of the suit land within 45 days from the date of judgment or decree, failure of which an order of eviction to issue
- 3.A permanent injunction restraining the defendant, her agents and/or servants from intermeddling, interfering, trespassing or in any way adversely dealing with the suit parcel of land
- 4.The defendant to pay costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim concerning title to land (Land Registration Act, 2012; plaint dated 10th May 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prisila Jesondin Chumo v Nelly Jebor (Environment & Land Case 113 of 2016) [2018] KEELC 2954 (KLR)", Case Analysis (2018). Eldoret ELC Civil Suit (plaint dated 10th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2954/eng@2018-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.