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ELCDismissedELC Case No. 372 of 2017 (Formerly Nairobi ELC No. 963 of 2006)· [2019] KEELC 96 (KLR)

Marituai Karingithe(Suing As The Legal Representative Of The Estate Of Karkise Ole Mosiro) & 2 others v Simon Ndungu Supeyo & another [2019] KEELC 96 (KLR)

Environment and Land Court
9 December 2019
3,363 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Kajiado Environment and Land Court upheld a family's 1968 registered title, dismissed the occupation claim, and ordered the other family to vacate within 90 days.

What this practically means

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Executive summary

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The Plaintiffs, members of the family of the late Karkise Ole Mosiro, sued for a declaration that they were lawful occupiers of LR No. Ngong/Ngong/845 and for a permanent injunction restraining the Defendants from evicting them. The 2nd Defendant counterclaimed, seeking orders that the Plaintiffs vacate and be evicted from the suit land, asserting that the Defendants were the absolute and indefeasible registered proprietors following first registration on 29th October 1968. The court framed four issues: registered proprietorship and indefeasibility of title, the jurisdiction of the 1980 arbitral panel of elders, and whether the parties were entitled to the relief sought in the Plaint and Counterclaim. The court found the Defendants' title first registered in the names of Simeon Ole Supeyo and Karanu Ole Supeyo and held the Plaintiffs had failed to discharge the burden of proving the pleaded fraud. The 1980 elders' award, which had directed a 50/30 acre subdivision, was declared null and void because the elders lacked jurisdiction over registered land under the repealed Land Disputes Tribunal Act and the award was never adopted by a court. Evidence from the surveyor and land registrar showed the Plaintiffs had encroached on the suit land, altered the Registry Index Map and forged a mutation, leading to criminal charges against two Plaintiffs; they were held to lack clean hands and their claim for an injunction was refused. The Plaintiffs' suit was dismissed with costs, judgment was entered for the Defendants on the Counterclaim, and orders were issued directing the Plaintiffs and those claiming under them to vacate the suit land and its subdivisions within a 90-day eviction notice.

Key legal issues

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01

Indefeasibility of the Defendants' registered title to Ngong/Ngong/845

Holding

The Defendants' title, first registered on 29th October 1968, is absolute and indefeasible and was upheld together with resultant subdivisions

Reasoning

The Green Card showed first registration in the names of Simeon Ole Supeyo and Karanu Ole Supeyo on 29th October 1968. DW2 traced the root of title to allocation by the Land Demarcation Committee in the 1960s. The Plaintiffs failed to prove fraud or illegality in the acquisition of the title. The court associated itself with the cited authorities on sections 27 and 28 of the repealed Registered Land Act and section 143(1), and upheld the title.

p. 4
02

Jurisdiction of the arbitral panel of elders over registered land

Holding

The 1980 award of the panel of elders was null and void as the elders lacked jurisdiction over registered land and the award was never adopted by a court

Reasoning

The 1980 arbitral proceedings directed subdivision of the suit land into 50 acres for the Plaintiffs' family and 30 acres for the Defendants'. However, under section 3 of the repealed Land Disputes Tribunal Act the elders lacked jurisdiction over registered land, and under section 7 the award was never adopted by the court. Relying on the Florence Nyaboke Machani decision, the court set the award aside and declared it null and void.

p. 3
03

Whether the Plaintiffs proved fraud against the Defendants' title

Holding

The Plaintiffs failed to discharge the burden of proving the pleaded fraud

Reasoning

The Plaintiffs alleged the Defendants fraudulently procured title, failed to disclose to the Land Registrar that the land originally belonged to Karkise Ole Mosiro, and failed to inform him of the acquisition. PW1 produced no documents to prove ownership. The court found the Plaintiffs did not discharge the burden of proof on these allegations in their oral and documentary evidence.

p. 3
04

Whether the Plaintiffs were entitled to injunctive relief

Holding

Injunctive orders were refused as the Plaintiffs lacked clean hands, having encroached on the Defendants' land and forged a mutation form

Reasoning

Evidence from the surveyor and land registrar, executing a 2012 court order, showed the Plaintiffs' family had fully encroached on the suit land, superimposed plots on it, altered the Registry Index Map and forged a mutation, leading to criminal charges against two Plaintiffs. Applying the clean hands principle from the Patrick Waweru Mwangi case, the court declined the injunction for failure to establish a prima facie case.

05

Entitlement to relief in the Counterclaim

Holding

Judgment was entered for the Defendants on the Counterclaim, with orders to vacate and a 90-day eviction notice

Reasoning

Having upheld the Defendants' indefeasible title and found the Plaintiffs were trespassers who encroached and sold superimposed plots to third parties, the court found the Plaintiffs had infringed on the Defendants' property rights and granted the Counterclaim orders of vacation and eviction, with a 90-day notice.

p. 4

Legal principles established

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  • Rights of a registered proprietor under sections 27 and 28 of the repealed Registered Land Act and sections 25 and 26 of the Land Registration Act are absolute and indefeasible, subject only to encumbrances, overriding interests, fraud or misrepresentation
  • A first registration of title cannot be cancelled or amended
  • A Land Disputes Tribunal lacks jurisdiction over registered land, and an award not adopted by a court cannot stand and may be declared null and void
  • Injunctive relief is an equitable remedy unavailable to a party without clean hands

Court orders

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  1. 1.An order directing the Plaintiffs and their respective families, relatives or agents and any other person claiming interest under them to vacate suit land parcel number Ngong/Ngong/845 and any resultant subdivisions therefrom
  2. 2.A 90 days' notice of eviction from the date of judgment issued to the Plaintiffs and their respective families, relatives or agents and anyone claiming interest under them from land parcel number Ngong/Ngong/845 and resultant subdivisions therefrom
  3. 3.Costs of the suit awarded to the Defendants

Authorities

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Legislation

  • Registered Land Act (repealed)sections 27, 28, 143(1)
  • Land Registration Actsections 25 and 26 (cited as "section 25 and 25")
  • Land Disputes Tribunal Act (repealed)sections 3 and 7

Cases cited (9)

  • Florence Nyaboke Machani V Mogere Amosi Ombui & 2 others
    (2014) eKLR
  • Okech Ogendo V Radi Chepkurgat Chelugut & 5 Others
    (2019) eKLR
  • Gladys Wanjiru Ngach V Teresia Chepsaat & 4 others
    (2008) eKLR
  • Muriuki Marigi V Richard Marigi & 2 Others
    Nyeri CA No. 189/96 unreported
  • Daniel K. Cheraisi & 2 Others V Kipkoech Kangongo & Another
    (2018) eKLR
  • Solomon Meme Muthamia V Ntaari Kabutura & Land Adjudication Officer Meru
    (2001) eKLR
  • Patrick Waweru Mwangi & Another V Housing Finance Co. of Kenya Ltd
    (2013) eKLR
  • Hilda Kagure V Moses Leshao
    HCCC ELC (2012) eKLR
  • Daniel Kamau Mugambi V Housing Finance Company of Kenya Ltd
    (2006) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Marituai Karingithe(Suing As The Legal Representative Of The Estate Of Karkise Ole Mosiro) & 2 others v Simon Ndungu Supeyo & another [2019] KEELC 96 (KLR)", Case Analysis (2019). ELC Case No. 372 of 2017 (Formerly Nairobi ELC No. 963 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/96/eng@2019-12-09

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