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ELCPartially AllowedEldoret ELC (not stated on face of judgment; plaint dated 16th May, 2016)· [2019] KEELC 2283 (KLR)

Thomas Kiprotich Kigen v Julius Kipsang Chebet & 2 others [2019] KEELC 2283 (KLR)

Environment and Land Court
23 July 2019
5,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who obtained a title over land with a known register mistake lost it — the court corrected the register in favour of the long-standing occupier.

What this practically means

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Executive summary

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In a first-instance suit before the Environment and Land Court at Eldoret, the plaintiff sought a declaration that parcel KOITOROR/TUIYOLUK BLOCK 1(KOITOROR)174 belonged to him, rectification of the 3rd defendant's (Koitoror Farmers Ltd) register, an injunction and eviction against the 2nd defendant. The 1st defendant, the registered proprietor on the members' register and holder of a 2016 title, filed a defence and counterclaim seeking his own declaration of ownership, eviction of the plaintiff and a permanent injunction; the 2nd defendant did not enter appearance. The court heard evidence from the plaintiff, who had occupied plot 174 for over 40 years; his witnesses; the 1st defendant, who admitted he occupied plot 190, that there was a mistake in the register, and that he obtained his title in 2016 while the rectification suit was pending; the Land Registrar; and a director of the 3rd defendant confirming the error. Applying Section 80 of the Land Registration Act, the court held there was a genuine mistake in the register, that members were allocated land where they were in occupation, and that any registration effected while the error subsisted was null and void. The 1st defendant was not protected by Section 80(2) as he was not in possession and had knowledge of the mistake. The plaintiff's claim succeeded; the counterclaim was dismissed. The court declared the plaintiff owner, ordered cancellation of the title and rectification of the register, issued an injunction against the 2nd defendant, ordered vacant possession within 30 days, and awarded costs to the plaintiff against the 1st and 2nd defendants.

Key legal issues

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01

Whether there was an error in the register entitling the plaintiff to rectification

Holding

Yes - all parties, including the 1st defendant, admitted the members' register erroneously named the 1st defendant as allottee of plot 174, which belongs to the plaintiff who has occupied it for over 40 years

Reasoning

The plaintiff, his witnesses, the 1st defendant himself, the Land Registrar and the 3rd defendant's director all confirmed the mistake. Members were allocated parcels where they were in occupation; the plaintiff occupied plot 174 and the 1st defendant occupied plot 190 for over 40 years. The 1st defendant's evidence supported rectification and disowned his defence and counterclaim.

p. 6
02

Whether the 1st defendant's title issued in 2016 during the pendency of the suit is valid

Holding

No - the registration was null and void as it was effected while the error subsisted and while the rectification case was pending, and the 1st defendant had knowledge of the anomaly

Reasoning

The 1st defendant admitted obtaining his title while the case was pending and knowing of the anomaly. Section 80(2) does not protect him because he was not in possession of plot 174 and had knowledge of, and contributed to, the mistake. The registration was therefore cancelled.

p. 6
03

Whether the plaintiff was a trespasser as claimed in the 1st defendant's counterclaim

Holding

No - the plaintiff's occupation was not trespass since he has been in possession of plot 174 for over 40 years

Reasoning

The court held that trespass requires unjustifiable intrusion upon land in possession of another. The 1st defendant admitted he had never possessed plot 174. The plaintiff's occupation could not therefore be trespass, and the 1st defendant led no evidence to prove the counterclaim.

p. 6
04

Whether the 2nd defendant's over-allocation of land should be corrected

Holding

Yes - the register was already rectified by the Land Registrar to reflect plot 173 at 1.78 hectares, and the injunction and eviction orders issue against the 2nd defendant

Reasoning

The plaintiff complained to the County Land Registrar, who summoned the 2nd defendant and amended the register, area list and survey map to reflect 1.78 hectares. The 2nd defendant neither entered appearance nor filed a defence, and the court granted the injunction and ordered vacant possession.

p. 4

Legal principles established

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  • The court has power under Section 80(1) of the Land Registration Act to order rectification of the register where a registration was obtained, made or omitted by fraud or mistake
  • A registration effected while an error in the register was subsisting is null and void
  • Section 80 confers powers on the court similar to those given to the Land Registrar under Section 79

Court orders

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  1. 1.It is hereby declared that Parcel No. KOITOROR/TUIYOLUK BLOCK 1(KOITOROR)174 belongs to the plaintiff and that the title be cancelled and be registered in the name of the plaintiff
  2. 2.The particulars contained in the 3rd defendant's register be rectified by striking out the name of the 2nd defendant and the plaintiff's name be inserted on the parcel No. KOITOROR/TUIYOLUK BLOCK 1(KOITOROR)174
  3. 3.An order of injunction is hereby issued barring the 2nd defendant or any other person claiming through him from interfering with the plaintiff's right over parcel No. KOITOROR/TUIYOLUK BLOCK 1(KOITOROR)174
  4. 4.The 2nd defendant to give vacant possession of the suit land within 30 days failure of which eviction orders to issue
  5. 5.The 1st and 2nd defendants to pay costs of the suit to the plaintiff
  6. 6.The 1st defendant's counterclaim dismissed with costs to the plaintiff

Authorities

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Legislation

  • Evidence ActSection 107(1), Cap 180
  • Land Registration ActSection 80
  • Land Registration ActSection 80(2)
  • Land Registration ActSection 80(1)
  • Land Registration ActSection 79
  • Land Registration ActSection 26
  • Constitution of KenyaArticle 40

Cases cited (2)

  • Monika Herta Elfriecle Behrmann vs Mubia Holdings Limited
    [2017] eKLR
  • Francis Nyauma Obare & 3 Others vs Maina Marwanga Omwamire & Another
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction over land claims (Environment and Land Court Act) - the court exercised first-instance jurisdiction over a claim for rectification of the register under Section 80 of the Land Registration Act, 2012; no specific constitutional provision invoked

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, "Thomas Kiprotich Kigen v Julius Kipsang Chebet & 2 others [2019] KEELC 2283 (KLR)", Case Analysis (2019). Eldoret ELC (not stated on face of judgment; plaint dated 16th May, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2283/eng@2019-07-23

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