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ELCPartially Allowed· [2019] KEELC 1869 (KLR)

Flora Cherono v Mary Njihia & 7 others [2019] KEELC 1869 (KLR)

Environment and Land Court
31 July 2019
6,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff sued eight defendants seeking a declaration of trespass, eviction, damages for trespass and costs over parcels Nos. Sinyerere/Kipsaina Block 2/77 (6.6 Ha) and Block 2/87 (16.5 Ha), which she acquired through shares in Kesogon Farm Ltd and for which titles were issued in her name in 2005. Only the 3rd and 7th defendants filed defences, claiming titles derived from Joseph Kibor and subdivisions (plots 410-420) allegedly effected by the Director of Surveys in 1992, and raising res judicata based on a 1992 Land Disputes Tribunal award adopted in Kitale SRMCC Land Case No. 227 of 1991. The court found the tribunal exceeded its jurisdiction under s.3(1) of the Land Disputes Tribunals Act by determining ownership of registered land, rendering its decision null and void and defeating the res judicata plea. On ownership, the plaintiff's registered titles under the repealed Registered Land Act were upheld. The defendants failed to prove root of title; no court order supported the Director of Surveys' subdivision, and s.25(2) of the Registered Land Act was not followed. The purported subdivision and all resulting titles (including plots 410 and 411 and their subdivisions) were declared null and void. Judgment was entered jointly and severally against the defendants: declarations of the plaintiff's proprietorship, cancellation of the impugned titles, rectification of the register and RIM to restore original acreages, eviction of the defendants, and costs against the defendants. The claim for damages for trespass was not the subject of any express award.

Key legal issues

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01

Res judicata based on a Land Disputes Tribunal award

Holding

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

Reasoning

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.

p. 4
02

Ownership of plots Nos. 77 and 87

Holding

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

Reasoning

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.

p. 4
03

Validity of the subdivision creating plots 410-420 and the defendants' titles

Holding

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

Reasoning

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.

p. 7
04

Trespass

Holding

The defendants' titles being null and void, they are in illegal occupation of the plaintiff's land

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.A declaration that the plaintiff is the proprietor of LR Numbers Sinyerere/Kipsaina Block 2/77 and Sinyerere/Kipsaina Block 2/87
  2. 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. 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. 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. 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. 6.Judgment entered against the defendants jointly and severally

Authorities

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Legislation

  • Land Disputes Tribunals ActSection 3(1)
  • Limitation of Actions ActCap 22
  • Registered Land Act (repealed)Sections 25(2), 27, 28
  • Land Registration ActSection 25
  • Land Adjudication ActNot specified
  • Government Lands ActNot specified

Cases cited (7)

  • M'Marete -vs- Republic & 3 Others
    [2004] eKLR (Nyeri Civil Appeal No. 259 of 2000)
  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR
  • James Joram Nyaga & Another -vs- A.G. & Another
    [2019] eKLR
  • Munyu Maina -vs- Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Elizabeth Wambui Githinji & Others -vs- The Hon. Attorney General & Others
    C.A. No. 156 of 2013 as consolidated with C.A. No. 160 of 2013
  • West End Butchery Limited V Arthi Highway Developers Limited & 6 Others
    [2012] eKLR
  • Iqbal Singh Rai vs Mark Lecchini and the Registrar of Titles
    Civil Case No 1054 of 2001
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership of and trespass on 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, "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.