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ELCAllowed· [2019] KEELC 3041 (KLR)

Nelly Chelimo Matelong v Grace Cherono Matelong [2019] KEELC 3041 (KLR)

Environment and Land Court
23 May 2019
MOM.A ODENY
3,565 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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A Kenyan court cancelled a sister's land title, finding she had tampered with records, and ordered the family land shared equally.

What this practically means

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Executive summary

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Two sisters litigated over land parcel NGERIA/KESSES/BLOCK 3 (KABABET)/42, measuring about 11.4 acres, registered in the defendant's name. The plaintiff claimed the land was bought by their father, Kipleting Matelong, through the Kibabet Farm land-buying group; that the father died in 1985 before subdividing it but directed that the sisters share it equally; and that after his death the defendant fraudulently erased his name from the farm register and had it replaced with hers. She sought a permanent injunction, declarations of trust and fraud, cancellation of the title, and half a share of the parcel. The defendant asserted she purchased the land for Kshs 3,800, produced a title deed, admitted the plaintiff's occupation, and offered her one acre. The court framed four issues: ownership of the land by the father, procedural regularity of the registration, existence of a customary trust, and whether the title should be cancelled. Relying on the testimony of the group's secretaries that Matelong cleared his debts, was never replaced in the register, and that the register was tampered with after his death, the court found the land belonged to the father. The defendant failed to explain her registration or produce proof of payment. Applying section 26 of the Land Registration Act and the Munyu Maina principle, the court held the title was procured unprocedurally and by fraud. Invoking section 28(b) on customary trusts, the court found the defendant held the land in trust for the plaintiff. The suit was allowed: a permanent injunction, a declaration of trust, cancellation of the title, registration of half shares each, with each party bearing their own costs as they are sisters.

Key legal issues

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01

Whether the suit land belonged to the parties' father, Kipleting Matelong

Holding

The land belonged to Kipleting Matelong, who was a member of the Kibabet Farm land-buying group

Reasoning

PW2 and PW3, members of the group, confirmed Matelong cleared his debts and that there was a replacement process which was never followed for him. The farm register produced in court was tampered with: Matelong's name was erased and replaced with the defendant's after his death. The defendant produced no proof of payment of Kshs 3,800 or of membership in the group.

p. 3
02

Whether the defendant's registration was procedural

Holding

The registration was not procedural; the title was vitiated by illegality and fraud

Reasoning

Section 26 of the Land Registration Act makes a title prima facie evidence of indefeasible ownership, but it may be challenged where acquired by fraud or illegally or unprocedurally. The defendant was under a duty to explain her registration yet could not; her accounts were contradictory (claiming purchase while asserting the father directed registration in her name). Fraud was distinctly pleaded and the evidence of register tampering corroborated the mischief.

p. 3
03

Whether a customary trust existed over the suit land

Holding

The defendant held the land in trust for the plaintiff, who is entitled to half share

Reasoning

Under section 28(b) of the Land Registration Act, trusts including customary trusts are overriding interests. The father purchased through the land company; both sisters occupied the land after acquisition and long after his death; by conduct the father intended both to live on the land. On Nandi custom and the circumstances of registration, a trust in favour of the plaintiff was established, and the proper course for the estate was succession, not deletion of the father's name.

p. 4
04

Whether the defendant's title should be cancelled

Holding

The title was ordered cancelled and half shares registered in the names of both sisters

Reasoning

Having found the registration unlawful and the existence of a customary trust, the court exercised its powers to cancel the title and order registration of half shares each, together with a permanent injunction against the defendant excluding the plaintiff.

p. 5

Legal principles established

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  • A registered proprietor whose root of title is challenged must go beyond the title instrument and prove the legality of the acquisition
  • Fraud must be distinctly pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
  • A trust, including a customary trust, can be created under customary law and the circumstances surrounding registration must be examined to determine whether a trust was envisaged

Court orders

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  1. 1.A permanent injunction issued against the defendant from utilizing the property described as NGERIA/KESSES/BLOCK 3 (KABABET)/42 to the exclusion of the Plaintiff
  2. 2.A declaration that the subject property was held in trust by the defendant for the benefit of the plaintiff
  3. 3.An order for the cancellation of title of parcel of land known as NGERIA/KESSES/BLOCK 3 (KABABET)/42
  4. 4.An order for registration of half share each of land parcel No. NGERIA/KESSES/BLOCK 3 (KABABET)/42 in the names of the plaintiff and the defendant
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration Actsection 26(1)(a) and (b)
  • Land Registration Actsection 28 (overriding interests, including trusts and customary trusts)
  • Land Registration Actsection 80
  • Land Registration Act 2012sections 24(a), 25 and 26
  • Registration of Titles Actnot specified
  • Constitution of Kenyaprotection of property rights (not specified)

Cases cited (8)

  • Dr. Joseph Arap Ngok v Justice Moijo Ole Keiuwa & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Kiarie v Geoffrey K inuthia & Another
    (2012) eKLR
  • Peter Muthuri Ogutu v Elmeda Basweti Motanda & 3 others
    [2013] eKLR
  • Koinange & 13 others v Koinange
    [1986] eKLR
  • Mike Maina Kamau v Attorney General
    [2017] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Kibiro Wagoro Makumi v Francis Nduati Macharia & another
    [2018] eKLR
  • Peter Gitonga v Francis Maingi M'ikiara
    [2007] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to title to land (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nelly Chelimo Matelong v Grace Cherono Matelong [2019] KEELC 3041 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3041/eng@2019-05-23

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