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ELCPartially AllowedEldoret ELC Civil Suit (plaint dated 10th May 2016)· [2018] KEELC 2954 (KLR)

Prisila Jesondin Chumo v Nelly Jebor (Environment & Land Case 113 of 2016) [2018] KEELC 2954 (KLR)

Environment and Land Court
17 April 2018
2,689 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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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

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Executive summary

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By a plaint dated 10th May 2016, the plaintiff sued the defendant, her daughter-in-law, seeking a declaration that she is the absolute registered owner of land known as TURBO EAST/SOSIAN BLOCK I (SUGOI) 12, mesne profits, eviction, a permanent injunction, costs and interest. The plaintiff testified that she acquired the land by transmission through a succession cause over her late husband's estate, obtained a title deed dated 23/2/16, and that the defendant was not provided for in the succession. The defendant, widow of the plaintiff's late son, claimed she had been shown the land by her father-in-law, occupied it with her children, and asserted a customary entitlement and trust. The court framed the issues as whether the plaintiff holds an indefeasible title and whether a trust existed between the parties. It found the plaintiff's registration by transmission unimpeached by any evidence of fraud or misrepresentation under sections 24, 25 and 26 of the Land Registration Act. Although section 28 recognizes trusts including customary trusts as overriding interests not requiring noting on the register, the defendant failed to prove either the alleged trust or her marriage to the plaintiff's son; her objection to the succession cause had been dismissed without appeal, and she filed no counterclaim. The court declared the plaintiff the absolute registered owner and the defendant a trespasser, ordered vacant possession within 45 days failing which eviction would issue, granted a permanent injunction, and awarded costs to the plaintiff. The claim for mesne profits failed for want of specific pleading and proof.

Key legal issues

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01

Whether the plaintiff holds an indefeasible title

Holding

Yes; the plaintiff was registered by transmission after succession and there was no evidence of fraud, misrepresentation or encumbrance

Reasoning

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.

p. 3
02

Whether the plaintiff held the land in trust (including customary trust) for the defendant

Holding

No; the defendant failed to prove the alleged trust or her marriage to the plaintiff's son

Reasoning

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.

p. 3
03

Whether the court could grant the defendant a share of the land

Holding

No; no counterclaim was filed

Reasoning

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.

p. 3
04

Whether mesne profits were payable

Holding

No; not specifically pleaded or proved

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.The defendant to pay costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Land Registration ActSection 28 (including Section 28(b) and Section 28(1))
  • Land Registration ActSections 24, 25 and 26

Cases cited (2)

  • ESTHER NDEGI NJIRU & ANOTHER =VS= LEONARD GATEI
    [2014] eKLR
  • Mukangu Vs Mbui
    (2004)2 KLR 256
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

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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, "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.