Flora Cherono v Mary Njihia & 7 others [2019] KEELC 1869 (KLR)
The bottom line
#A Kenyan landowner proved her titles were genuine, so all competing titles created by an unauthorised subdivision were cancelled and the occupants must be evicted.
What this practically means
#Executive summary
#Key legal issues
#Res judicata based on a Land Disputes Tribunal award
The tribunal's 1992 award was null and void because it exceeded jurisdiction under the Land Disputes Tribunals Act by determining ownership of registered land; the plea of res judicata does not arise
The tribunal in Kitale SRMCC Land Case No. 227 of 1991 made declarations as to ownership of land. Section 3(1) of the Land Disputes Tribunals Act, commenced 1/7/1993, did not grant tribunals power to determine ownership. Relying on M'Marete v Republic, the court held the tribunal acted ultra vires, nullifying the award and removing any res judicata bar.
Ownership of plots Nos. 77 and 87
The plaintiff is the indefeasible owner of plots 77 and 87 by virtue of her shareholding in Kesogon Farm Ltd and titles registered in her name under the Registered Land Act
The plaintiff produced original share certificates, agreements, official searches and titles. Under s.27 and s.28 of the repealed Registered Land Act (mirrored in s.25 of the Land Registration Act), registration vests absolute ownership and protects the proprietor's rights free from other claims. The defendants failed to show any lawful derivation from her title.
Validity of the subdivision creating plots 410-420 and the defendants' titles
The Director of Surveys' purported subdivision of plots 77 and 87 and all resulting titles were null and void for want of any court order or compliance with s.25(2) of the Registered Land Act
The letter of 10/8/1992 cited an unnamed High Court case; no court order supported the subdivision, the registers of the parent parcels were never closed, the area list retained original acreages, and titles issued in 2005 were never recalled. The defendants, having purchased from third parties without proper root of title, could not invoke indefeasibility.
Trespass
The defendants' titles being null and void, they are in illegal occupation of the plaintiff's land
Since the defendants failed to establish properly rooted titles and their titles were declared null and void, their continued occupation of the suit lands constitutes trespass warranting eviction.
Legal principles established
#- The Land Disputes Tribunals Act, s.3(1), did not confer jurisdiction on Land Disputes Tribunals to determine ownership of land; a tribunal decision awarding ownership of registered land is null and void and cannot found a plea of res judicata
- Where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of how the title was acquired
- The Director of Surveys had no power to arbitrarily subdivide a registered proprietor's land without the authority of the proprietor or a properly obtained court order
Court orders
#- 1.A declaration that the plaintiff is the proprietor of LR Numbers Sinyerere/Kipsaina Block 2/77 and Sinyerere/Kipsaina Block 2/87
- 2.A declaration that titles Nos. Sinyerere/Kipsaina Block 2/410 and Sinyerere/Kipsaina Block 2/411 and all titles to their resultant subdivisions, having been irregularly created within the suit lands, are null and void and incapable of reducing the original size of the suit lands
- 3.An order that Plot Nos. Sinyerere/Kipsaina Block 2/77 and Sinyerere/Kipsaina Block 2/87 shall retain their original acreages on the original Registry Index Map (RIM) obtaining before the purported amendment by the Director of Surveys
- 4.An order cancelling the titles to Plots Nos. Sinyerere/Kipsaina Block 2/410 and 2/411 and all their resultant subdivisions, and that the Land Register and Registry Index Map be rectified by the Land Registrar and Director of Surveys respectively
- 5.An order for eviction of the defendants from the portions of land known as Sinyerere/Kipsaina Block 2/77 and Sinyerere/Kipsaina Block 2/87 belonging to the plaintiff
- 6.Judgment entered against the defendants jointly and severally
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to ownership of and trespass on land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flora Cherono v Mary Njihia & 7 others [2019] KEELC 1869 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1869/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.