Esther Cherop v Geoffrey Kemei [2019] KEELC 2950 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether parcel KERICHO/KIPTUGUMO/227 still exists and who owns it
The parcel remains registered in the name of the deceased as the sub-division was incomplete, no new titles having been issued.
The certificate of official search showed the suit land still registered in the name of Kipyegon Arap Terer (deceased). Although the deceased sub-divided the land into five portions in 2004 and executed the Land Control Board consent application and mutation forms, the process of issuance of new titles was never completed. The court found the sub-division incomplete, so the mother title remained valid.
Whether the Defendant is a trespasser
The Defendant is not a trespasser in the strict sense because the deceased acquiesced in his occupation, but the sale to him by Hellen Chebii was invalid as she had no title.
The Plaintiff conceded the Defendant occupied the land during the deceased's lifetime. The deceased's failure to evict him implied consent to the sale by his daughter. However, Hellen Chebii sold before acquiring title and could pass no interest. The Defendant's remedy is against Hellen's estate for the purchase price. The court distinguished the Arthi fraud case.
Validity of the Soin Land Disputes Tribunal decision
The Tribunal's decision was invalid for lack of jurisdiction and because Hellen Chebii had no capacity to sue.
Hellen Chebii sued at the Tribunal without title or a grant of letters of administration, so she lacked capacity. Further, the Tribunal exceeded its statutory jurisdiction under section 3(1) of the Land Disputes Tribunal Act by determining ownership of registered land, a matter reserved to the courts. The case relied on by the Defendant was distinguished.
Whether the Plaintiff is entitled to the reliefs sought
Judgment entered for the Plaintiff on declaration, eviction and permanent injunction, but mesne profits and costs were refused.
The Plaintiff proved her case on a balance of probabilities to a large extent. However, because the Defendant occupied with the registered owner's acquiescence, mesne profits were not merited and costs were not awarded to the Plaintiff. The court allowed a 90-day vacancy period before the injunction took effect.
Legal principles established
#- A person who sells land before acquiring title to it is incapable of passing any interest in the land to the purchaser.
- Only a legal representative of a deceased person can sue or be sued in respect of the deceased's estate.
- The Land Disputes Tribunal's jurisdiction was limited to boundary disputes and claims to occupy or work land, not ownership of registered land.
Court orders
#- 1.A declaration is hereby issued that land parcel number KERICHO/KIPTUGUMO/227 does not belong to the Defendant.
- 2.The Defendant is hereby ordered to vacate the suit land within 90 days from the date hereof.
- 3.After the period of 90 days stated in (b) above, a permanent injunction shall issue restraining the Defendant from entering or trespassing on the suit land.
- 4.Each party shall bear their own costs.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel KERICHO/KIPTUGUMO/227 (specific enabling provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Cherop v Geoffrey Kemei [2019] KEELC 2950 (KLR)", Case Analysis (2019). Kericho ELC Case (Plaintiff's suit, Plaint dated 16th January 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2950/eng@2019-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.