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ELCAllowedELC Case No. 685 of 2017 (OS) (Formerly Machakos ELC No. 219 of 2012 'OS')· [2019] KEELC 4024 (KLR)

Daniel Nganga Njoroge & another v Lemutaka Ole Ntilalei & 3 others [2019] KEELC 4024 (KLR)

Environment and Land Court
19 March 2019
2,325 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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A Kenyan landowner who subdivided land to dodge a court order lost the fight—the new titles were revoked.

What this practically means

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Executive summary

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The plaintiffs, who purchased 20 acres and 10 acres respectively from the 1st Defendant under sale agreements dated 1985, sought declarations that 30 acres out of Kajiado/Kitengela/6137 (later subdivided into five parcels) belonged to them, and revocation of the resultant titles, relying on a decree of the Kajiado SRM's Court in Misc. Application 4 of 2000 adopting a Land Disputes Tribunal award. The 1st Defendant admitted the sales but claimed the purchase price was never completed, denied participating in the Tribunal proceedings, and contended the claim was time barred, that Land Control Board consent was lacking, and that the Tribunal lacked jurisdiction over registered land. The court framed three issues: limitation, validity of the SRM decree, and entitlement to relief. It found the 1st Defendant participated in the Tribunal proceedings despite his denial, never appealed the award or the decree nor sought judicial review, and fraudulently subdivided the land and distributed it to his sons (the 2nd to 4th Defendants) in 2010 to defeat the decree. Since fraud was alleged, limitation could not be invoked; time ran only from the 2010 subdivisions. The decree was held valid and unexecuted. The plaintiffs' suit was allowed: the Land Registrar was ordered to revoke the five resultant titles and revert the land to the original parcel, a declaration was made that the plaintiffs own 30 acres, the Registrar was directed to register the plaintiffs as absolute proprietors of their respective 20 and 10 acres, and costs were awarded to the plaintiffs. Judgment delivered by Christine Ochieng, J, on 19 March 2019.

Key legal issues

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01

Whether the claim is statute barred

Holding

The claim is not time barred; limitation only began running in 2010 when the 1st Defendant subdivided the land to defeat the decree

Reasoning

The court found the subdivisions effected in 2010 were done after the decree of 8th November 2000 and were intended to defeat its implementation. Because fraud was alleged and demonstrated - the 1st Defendant subdividing and distributing land to his sons with full knowledge of the decree - limitation could not be invoked. Time began running only upon the fraudulent 2010 subdivisions.

p. 3
02

Validity of the decree in Kajiado SRM Misc. Application No. 4 of 2000 adopting the Land Disputes Tribunal award

Holding

The decree remains valid and unexecuted; the 1st Defendant, having participated in the Tribunal proceedings and neither appealed nor sought judicial review, cannot challenge it

Reasoning

The court noted the 1st Defendant was present at the LDT proceedings despite his denial, never appealed the award or the decree, and never sought judicial review to quash the Tribunal's decision. There therefore exists a decree yet to be executed. Having participated in the proceedings, he could not raise the Tribunal's alleged lack of jurisdiction over registered land at this stage.

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03

Entitlement to the reliefs sought in the Originating Summons

Holding

The Plaintiffs proved their case on a balance of probability and are entitled to the declaration and registration orders sought

Reasoning

The court found the 1st Defendant acted fraudulently and in bad faith by subdividing the suit land and distributing it to his sons to defeat the decree, and lacked clean hands. The decree in the SRM's court was held valid, and the Plaintiffs, who bought 20 and 10 acres respectively, were entitled to revocation of the subsequent titles and registration as proprietors of their portions.

p. 3

Legal principles established

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  • Where fraud is alleged, the limitation period cannot be invoked as a defence
  • A party who participated in Tribunal proceedings and did not appeal or seek judicial review of the award cannot later raise the illegality of that decision
  • Court orders cannot be defeated by a party being elusive to avoid implementation

Court orders

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  1. 1.That by virtue of the Decree in the Kajiado Resident Magistrate Court Miscellaneous Application 4 of 2000, the Land Registrar, Kajiado is directed to revoke titles to land parcels Kajiado/Kitengela/23949, 23950, 23951, 23952 and 23953 and the same revert to the original parcel Kajiado/Kitengela/6137
  2. 2.A declaration that the Plaintiffs are entitled to 30 acres of land out of land parcel number Kajiado/Kitengela/6137
  3. 3.The Land Registrar Kajiado is directed to register the 1st and 2nd Plaintiffs as absolute proprietors of their respective portions of 20 and 10 acres respectively
  4. 4.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration Act 2012Section 68(2)
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act 2012 (matter concerning land parcels Kajiado/Kitengela/6137 and resultant subdivisions)

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, "Daniel Nganga Njoroge & another v Lemutaka Ole Ntilalei & 3 others [2019] KEELC 4024 (KLR)", Case Analysis (2019). ELC Case No. 685 of 2017 (OS) (Formerly Machakos ELC No. 219 of 2012 'OS'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4024/eng@2019-03-19

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