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ELCPartially AllowedELC No. 227 of 2001· [2019] KEELC 341 (KLR)

Philip K.Tanui v Ruth C. Chepngetich & another [2019] KEELC 341 (KLR)

Environment and Land Court
31 October 2019
EOE. O. Obaga
1,766 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court confirmed a co-owner gets his one-third share of a Kileleshwa property plus past rental income, because fraud claims must be pleaded properly.

What this practically means

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Executive summary

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The Plaintiff sued the two Defendants over LR No. 209/12919, Kileleshwa, registered in the joint names of the Plaintiff and the two Defendants as tenants in common in equal shares. He sought a declaration of co-ownership, accounts of rentals from January 1997, payment of one-third of rents, valuation of the property, a permanent injunction against alienation, general damages and costs. His case was that the three jointly applied for and were allocated the property, and that under a Memorandum of Understanding dated 16th July 1997 the Defendants were to buy off his share upon sub-division. The Defendants, both retired civil servants who had each been allocated a maisonette they occupied, contended that the Plaintiff, a broker in the Lands Office who processed the titles, was only entitled to a token, made no contribution to the purchase, fraudulently inserted his name on the title, and never signed the MOU. The court framed four issues: fraud, entitlement to a one-third share, entitlement to one-third of rental income, and the reliefs generally. Relying on the principle that parties are bound by their pleadings, the court rejected the fraud allegations since no particulars of fraud were pleaded and the Defendants admitted the MOU in their documents. It found the Plaintiff entitled to one-third of the property and to one-third of the rental income, to be assessed following accounts, accepting uncontroverted 2006 valuation evidence of Kshs.60,000 per maisonette. Judgment was entered for the Plaintiff jointly and severally against the Defendants with a declaration of tenancy in common, accounts, valuation and buyout or sale, an interim restraint, and costs against the Defendants. The claim for general damages was not included in the final orders.

Key legal issues

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01

Whether registration of the Plaintiff as co-owner was procured by fraud

Holding

Fraud allegations failed because particulars of fraud were never pleaded; the Defendants admitted the MOU in their pleadings

Reasoning

The court held that a party is bound by pleadings. Fraud was raised only 'in passing' during the hearing, yet the defence contained no particulars of fraud and the Defendants themselves listed the MOU among their documents and admitted its existence. Having recognized the Plaintiff's right in the MOU, they could not resile from it at trial.

p. 2
02

Whether the Plaintiff is entitled to 1/3 share of the suit property

Holding

Yes; title shows the three as tenants in common in equal shares and the Defendants admitted the MOU under which they agreed to buy off the Plaintiff's share

Reasoning

The registered title records the Plaintiff and Defendants as tenants in common in equal shares. The parties could not physically share the property, hence the MOU of 16th July 1997. The Defendants' denial of signing the MOU was inconsistent with their pleadings; they ought to have subjected the signatures to forensic examination if serious.

p. 2
03

Whether the Plaintiff is entitled to 1/3 of the rental income

Holding

Yes; entitlement found, with the amount to be assessed after accounts, based on a 2006 valuation of Kshs.60,000 per maisonette

Reasoning

Although there was no evidence of the Kshs.100,000 rent claimed at filing, a 2006 valuer found each maisonette let at Kshs.60,000 and this was not controverted. The Defendants' claim that they themselves occupied the maisonettes was unproven. As co-owner, the Plaintiff had been deprived of the benefit of the property.

p. 2

Legal principles established

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  • Parties are bound by their pleadings and evidence at variance with the pleadings goes to no issue and must be disregarded

Court orders

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  1. 1.A declaration that LR No 209/12919 is owned by the Plaintiff and the Defendants as tenants in common in equal shares
  2. 2.An order for full accounts of rental receivable and/or received from the two maisonettes on LR No.209/12919 from January 1997 until settlement of the claim and that the Plaintiff is entitled to 1/3 share from those rental income
  3. 3.The suit property to be valued with a view to the Defendants buying off the Plaintiff by giving him 1/3 share of the value or, if not possible, the suit property to be sold so the three owners can have their equal share
  4. 4.Until the matter is fully settled, the Defendants are restrained from in any manner interfering with or disposing of the suit property unless it is towards realization of the decree
  5. 5.The costs of the suit to be paid by the Defendants

Authorities

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Cases cited (2)

  • Independent Electoral and Boundaries Commission & another Vs Stephen Mutinda Mule and 3 others
    (2014) eKLR
  • Adetoun Oladegi (NIG) Vs Nigeria
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property LR No. 209/12919

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, "Philip K.Tanui v Ruth C. Chepngetich & another [2019] KEELC 341 (KLR)", Case Analysis (2019). ELC No. 227 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/341/eng@2019-10-31

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