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ELCAllowedOriginating from Molo CMCC No. 131 of 2015 (transferred to the Environment and Land Court, Nakuru)· [2019] KEELC 2718 (KLR)

Elizabeth Cehptanui Rono & another v Edward Kiprono Ruto & another [2019] KEELC 2718 (KLR)

Environment and Land Court
13 June 2019
3,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nakuru cancelled a suspicious land title and confirmed that the original owner's family owns the disputed parcel.

What this practically means

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Executive summary

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The plaintiffs, legal representatives of Andrew Kipngeno Rono (deceased), sued over land parcel Nakuru/Saino Settlement Scheme/64. They pleaded that the deceased, who died in April 2011, was issued a title deed on 7 July 2006 after purchasing the land from the original allottee, Philip Rotich, and that the 1st defendant fraudulently procured a parallel title on 23 November 2012. They sought cancellation of the 1st defendant's title, eviction of the defendants (the 2nd defendant, the 1st defendant's father, being in occupation), costs and general relief. The defendants asserted that the 1st defendant purchased the land from Philip Rotich in 2005 and obtained title in 2012 after a caveat was lifted, and denied forgery. The Land Registrar confirmed Philip Rotich was the original allottee but could not trace the Green Card; he noted that the plaintiffs' title followed the correct sequence of entries for a purchaser in a settlement scheme, whereas the 1st defendant appeared as entry No. 2 as if he were the original allottee, and his name was absent from the allottees' list. The court found the 1st defendant's sale agreement highly suspect: it surfaced only in 2018, contradicted the pleaded 2012 purchase date, and bore a signature inconsistent with Philip Rotich's. The caveat explanation also failed, as the caveat was imposed in 2009. The court declared the plaintiffs' title authentic, cancelled the 1st defendant's title, directed reconstruction of the register, ordered the defendants to vacate within 30 days failing forcible eviction at their cost, permanently restrained them, and awarded costs against the 1st defendant only.

Key legal issues

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01

Authenticity of competing titles over the same parcel

Holding

The title held by the plaintiffs (issued to the deceased on 7 July 2006) is the authentic title; the 1st defendant's title issued on 23 November 2012 is dubious and is cancelled.

Reasoning

The 1st defendant's title showed him as entry No. 2, which would imply he was the original allottee, yet his name did not appear in the original list of allottees. A purchaser should appear as entries No. 4 and 5. His sale agreement surfaced only in 2018, was inconsistent with the pleadings which stated a 2012 purchase, and its signature purporting to be Philip Rotich's did not match the signature on the plaintiffs' agreement. The explanation that a caveat delayed issuance of title until 2012 was contradicted by evidence that the caveat was imposed in 2009. The 1st defendant also never took possession until 2012/2013.

p. 3
02

Authenticity of the 1st defendant's sale agreement

Holding

The sale agreement displayed by the 1st defendant is highly suspect and cannot found a valid title.

Reasoning

The defence and a replying affidavit deposed that the 1st defendant purchased the land in 2012, whereas the agreement produced was dated 2005; no consistent account was given. The agreement surfaced for the first time in 2018 in his list of documents, despite being the foundation of his case. The signature attributed to Philip Rotich differed materially from his signature on the plaintiffs' agreement, and DW-3, the attesting witness, declined to produce his identity card.

p. 3
03

Whether a sale agreement not drawn by a qualified advocate is invalidated by sections 34 and 35 of the Advocates Act

Holding

No. Those provisions apply to registrable instruments; a sale agreement is not registrable.

Reasoning

Counsel for the defendants argued the plaintiffs' agreement should be rejected for want of drafting by a qualified person. The court held that sections 34 and 35 concern instruments requiring registration, and what is registered is the transfer instrument, not the sale agreement, so the objection failed.

p. 3
04

Possession and entitlement to evict

Holding

The defendants, holding no valid title, have no right to possession and must vacate within 30 days subject to forcible eviction.

Reasoning

Having held the 1st defendant's title dubious, the court found the defendants cannot continue in possession. The court credited the plaintiffs' evidence that the deceased was in possession until his death, and that the defendants moved onto the land only after his demise, with the 2nd defendant occupying from 2013/2014.

Legal principles established

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  • A purchaser from an original allottee in a settlement scheme should appear as entries No. 4 and 5 in the title deed; a title showing the purchaser as entry No. 2, as if an original allottee, is suspect.
  • Sections 34 and 35 of the Advocates Act do not invalidate a sale agreement not drawn by an advocate, because a sale agreement is not an instrument requiring registration.
  • Where parallel titles exist and the Green Card cannot be traced, the court may determine authenticity by reference to the documents produced by the parties.

Court orders

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  1. 1.Declaration that the title produced by the plaintiffs bearing the name of Andrew Kipngeno A. Rono is the more authentic title over Nakuru/Saino Settlement Scheme/64
  2. 2.Cancellation of the purported title of Edward Kiprono Ruto, the 1st defendant
  3. 3.Direction to the Land Registrar to reconstruct the register of Nakuru/Saino Settlement Scheme/64 to reflect Andrew Kipngeno A. Rono (deceased) as proprietor
  4. 4.Defendants and/or their servants/agents given 30 days to vacate the suit land, failing which forcible eviction with eviction costs borne by the defendants
  5. 5.Permanent injunction restraining the defendants from entering, being upon, utilizing, dealing with or in any way interfering with the possession or title of the suit land upon expiry of the 30-day window
  6. 6.1st defendant ordered to bear the costs of the suit

Authorities

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Legislation

  • Advocates ActSection 34
  • Advocates ActSection 35
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over title to land, following transfer from the Chief Magistrate's Court at Molo

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, "Elizabeth Cehptanui Rono & another v Edward Kiprono Ruto & another [2019] KEELC 2718 (KLR)", Case Analysis (2019). Originating from Molo CMCC No. 131 of 2015 (transferred to the Environment and Land Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2718/eng@2019-06-13

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