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ELCPartially Allowed· [2019] KEELC 3149 (KLR)

Samson Kipkosgei Chepkong’a v Chepkonga Chebiego [2019] KEELC 3149 (KLR)

Environment and Land Court
28 May 2019
AOA. Ombwayo
3,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A son who planted trees on his father's registered land with permission won a share of the proceeds, but the father kept ownership of the land itself.

What this practically means

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Executive summary

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The plaintiff, Samson Kipkosgei Chepkong’a, sued his father, Chepkong’a Chebiego, the registered proprietor of UASIN GISHU/AINABKOI WEST/142, claiming that between 1998 and 2012 he planted over 4000 trees of cypress, blue gum, pine and gravellier species on the parcel with the defendant's consent and in the presence of family members. He sought a permanent injunction restraining the defendant from interfering with or harvesting the trees, a declaration that he owned the plantation, restitution of the value of 93 trees the defendant allegedly harvested in excess of the 20 trees allotted to him at a family meeting, and costs. The defendant averred that he purchased the land in 1963 from the Settlement Fund Trustees, obtained a Land Certificate in 1986, and as registered owner owned everything on the land, including the trees he had himself planted and harvested. Five plaintiff witnesses testified to the planting of the trees and the family dispute; the defendant testified alone. The court found that the land belonged to the defendant while the trees were planted by the plaintiff with the defendant's permission and help. Applying sections 24, 25, 26 and 28 of the Land Registration Act, the court held the defendant's title indefeasible but found that permitting the planting made the plaintiff a licensee with an overriding interest subsisting until the trees were harvested. As the defendant also cared for and planted some trees, the court held both parties entitled to half the trees, ordered valuation by the government valuer, harvesting by the plaintiff, and equal sharing of the proceeds, with no order as to costs given the family relationship.

Key legal issues

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01

Effect of registration under the Land Registration Act

Holding

The defendant, as registered proprietor, holds absolute and indefeasible title to the suit land

Reasoning

The court applied sections 24, 25 and 26(1) of the Land Registration Act. The defendant produced his title deed, having been allocated the land in 1963 and issued a Land Certificate in 1986. His proprietorship could only be challenged on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme, none of which were established.

p. 4
02

Ownership of trees planted by a person on another's land with permission

Holding

The plaintiff became a licensee with an overriding interest in the land, and both parties are entitled to half the trees; the plaintiff harvests and both share the proceeds equally

Reasoning

The court found as fact that the plaintiff planted over 4000 trees on the suit land with the permission and assistance of the defendant between 1998 and 2012. The licence subsists so long as the trees remain and is extinguished on harvesting. Because the defendant also cared for and planted some trees, an entitlement in the trees was found on both sides, resulting in an equal split of proceeds.

p. 4
03

Plaintiff's claim for injunction and declaration

Holding

The claims for a permanent injunction and sole declaration of ownership were not granted in the terms sought

Reasoning

Since the defendant was found to be the indefeasible registered owner of the land and entitled in part to the trees, the plaintiff could not obtain an absolute injunction or a declaration of sole ownership of the plantation. The court fashioned an equitable remedy of valuation and equal sharing of proceeds instead.

p. 4

Legal principles established

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  • A person permitted to plant trees on another's land becomes a licensee with an overriding interest so long as the trees remain on the land, and the licence is extinguished upon harvesting
  • Registration of a person as proprietor of land vests absolute ownership together with all rights and privileges appurtenant thereto
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme

Court orders

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  1. 1.The trees to be valued by the government valuer and harvested by the plaintiff
  2. 2.Both parties to share the proceeds of the trees equally
  3. 3.No order as to costs

Authorities

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Legislation

  • Land Registration Actsection 24 (section 24(a))
  • Land Registration Actsection 25(1) (s.25(i))
  • Land Registration Actsection 26(1)
  • Land Registration Actsection 28
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land (cause of action arising within the court's jurisdiction); admitted by both parties

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, "Samson Kipkosgei Chepkong’a v Chepkonga Chebiego [2019] KEELC 3149 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3149/eng@2019-05-28

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