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ELCPartially AllowedNot stated in the judgment (Eldoret ELC plaint dated 14th March 2017)· [2019] KEELC 3577 (KLR)

Evalyne Nyanchama Nyasani v Ezra Kemboi & 2 others [2019] KEELC 3577 (KLR)

Environment and Land Court of Kenya
26 April 2019
2,288 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff sued the defendants seeking a perpetual injunction restraining them from trespassing on or utilising land parcel ELDORET MUNICIPALITY BLOCK 20(KAPYEMIT)/740 (1.37 Ha), a declaration that she is the bona fide registered owner, mesne profits, police enforcement of the orders and costs. Her case was that she exchanged her 8.8-acre Soy parcel with the previous registered owner, Kibyego Tirop, under a memorandum of exchange executed before her advocates; she obtained Land Control Board consent, paid stamp duty and registration fees, was registered on 21st December 2009, and took vacant possession until the defendants invaded the land in 2017, ploughed it and assaulted her workers, leading to contempt proceedings and criminal charges against the 1st defendant. The 3rd defendant, Tirop's sister-in-law, claimed the land was family land, that she never attended the Land Control Board and that a succession cause was filed without involving the beneficiaries. The defendants contended the subdivision and transfer were fraudulent and that the grant of letters of administration was obtained by concealment, relying on Rule 26 of the Probate and Administration Rules and section 76 of the Law of Succession Act. The court found it not in dispute that the exchange agreement existed, that Land Control Board consent was obtained, and that the plaintiff was duly registered; under sections 24, 25 and 26 of the Land Registration Act her title is prima facie and indefeasible and no fraud was proved. The 3rd defendant, a witness to the exchange, could not complain of fraud. The validity of the succession grant was not for this court to determine; the defendants should have sought revocation from the granting court. Mesne profits, being special damage not specifically pleaded and proved, were declined. The court entered judgment for the plaintiff with a perpetual injunction, a declaration of ownership and costs.

Key legal issues

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01

Validity of the exchange agreement and transfer between the plaintiff and Kibyego Tirop

Holding

The exchange agreement was valid; the plaintiff followed due process, obtained Land Control Board consent, paid stamp duty and was duly registered as proprietor

Reasoning

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.

p. 3
02

Alleged fraud in the acquisition of the plaintiff's title

Holding

Fraud was not established; the 3rd defendant was herself a witness to the exchange agreement and her fraud claim was an afterthought

Reasoning

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.

p. 3
03

Defendants' contention that the grant of letters of administration to Kipyego Tirop was defective for failure to notify all beneficiaries

Holding

That issue is not for determination in this suit; the defendants should have sought revocation from the succession court

Reasoning

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.

p. 3
04

Claim for mesne profits

Holding

Declined for failure of proof

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Declaration that the Plaintiff is the bonafide registered owner of Land Parcel No. ELDORET MUNICIPALITY BLOCK 20(KAPYEMIT)/740 or thereabout
  3. 3.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Probate and Administration RulesRule 26
  • Law of Succession ActSection 76
  • Land Registration ActSections 24, 25 and 26
  • Land Control ActConsent provisions (referenced generally)
  • Stamp Duty ActReferenced generally

Cases cited (3)

  • AL-Amin Abdulrehman Hatimy v Mohamed Abdulrehman Mohamed & Another
    (2013) eKLR
  • Republic vs Provincial Land Disputes Appeal Committee For Central Province Exparte Margaret Beatrice Murigi
    [2013] eKLR
  • Jacob Michuki Minjiire —Vs— Agricultural Finance
    Civil Appeal No. 61 of 1982
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

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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, "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.