Evalyne Nyanchama Nyasani v Ezra Kemboi & 2 others [2019] KEELC 3577 (KLR)
The bottom line
#An Eldoret court confirmed a land buyer's title as untouchable after a proper exchange, and told a rival family to challenge any succession grant in the succession court, not a land suit.
What this practically means
#Executive summary
#Key legal issues
#Validity of the exchange agreement and transfer between the plaintiff and Kibyego Tirop
The exchange agreement was valid; the plaintiff followed due process, obtained Land Control Board consent, paid stamp duty and was duly registered as proprietor
The court found it not in dispute that an exchange agreement existed and that the plaintiff obtained the requisite Land Control Board consent, paid stamp duty and registration fees, and procured registration as proprietor through her advocates. She took vacant possession. Under sections 24, 25 and 26 of the Land Registration Act her title is prima facie and indefeasible, and no evidence of fraud was adduced to displace it.
Alleged fraud in the acquisition of the plaintiff's title
Fraud was not established; the 3rd defendant was herself a witness to the exchange agreement and her fraud claim was an afterthought
The 3rd defendant alluded to fraud but fell short of establishing that the plaintiff procured her title fraudulently. She admitted the exchange, occupied the exchanged Soy land for a year, and was a witness to the exchange agreement. Section 26 of the Land Registration Act permits impeachment of title only on grounds of fraud, misrepresentation, illegality or unprocedural acquisition, none of which was proved.
Defendants' contention that the grant of letters of administration to Kipyego Tirop was defective for failure to notify all beneficiaries
That issue is not for determination in this suit; the defendants should have sought revocation from the succession court
Counsel for the defendants relied on Rule 26 of the Probate and Administration Rules and section 76 of the Law of Succession Act to argue the grant was obtained by concealment. The court held that whether the grant was fraudulently obtained is not for this court to determine in a land suit; the proper remedy was to approach the court that issued the grant. The Succession Cause number was never disclosed.
Claim for mesne profits
Declined for failure of proof
Mesne profits are a claim in special damages, which must be specifically pleaded and strictly proved. The plaintiff did not plead or prove the quantum, and the court declined the relief while granting the substantive reliefs of injunction and declaration.
Legal principles established
#- A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, impeachable only for fraud, misrepresentation, illegality or unprocedural acquisition
- Mesne profits are special damages which must be specifically pleaded and proved
- A party challenging a grant of letters of administration must seek revocation from the court that issued the grant; the issue cannot be collaterally determined in a land suit
Court orders
#- 1.An order of perpetual injunction restraining the Defendants from trespassing upon, working, tilling, cultivating and or in any other manner utilizing parcel of land No. ELDORET MUNICIPALITY BLOCK 20(KAPYEMIT)/740 approximately measuring 1.37 Ha
- 2.Declaration that the Plaintiff is the bonafide registered owner of Land Parcel No. ELDORET MUNICIPALITY BLOCK 20(KAPYEMIT)/740 or thereabout
- 3.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the High Court/Environment and Land Court over land disputes (plaint filed under the Civil Procedure Act and Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evalyne Nyanchama Nyasani v Ezra Kemboi & 2 others [2019] KEELC 3577 (KLR)", Case Analysis (2019). Not stated in the judgment (Eldoret ELC plaint dated 14th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3577/eng@2019-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.