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ELCDismissedNotice of motion dated 18th June 2018 (petition filed contemporaneously)· [2019] KEELC 4590 (KLR)

Francis Okech Ognedo v Raeli Chepkurgat Cheluget & 5 others [2019] KEELC 4590 (KLR)

Environment and Land Court
20 February 2019
SKS.M. Kibunja
1,335 words in judgment
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The bottom line

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The Environment and Land Court in Kisumu refused to block a land sale, holding the registered owner's title is protected by law.

What this practically means

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Executive summary

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The Petitioner, Francis Okech Ogendo, moved the Environment and Land Court by notice of motion dated 18th June 2018 seeking a conservatory order restraining the administrators of the estate of Isaya Cheluget and the Land Registrar, Kisumu, from selling, dealing in or transferring parcel Kisumu/Nyalenda 'B'/463 pending determination of his petition. He contended that the land was ancestral land fraudulently taken by the late Isaya Cheluget, that the administrators had obtained a confirmed grant before expiry of six months, and that they were selling the land to the County Government of Kisumu. He also complained that a restriction placed on the land by his late father had been removed without due process. The Respondents opposed, stating their late father bought the land in 1974 and was registered as first proprietor on 28th March 1990, occupying it exclusively until his death in 2017; the Petitioner's father had trespassed in 1994 and was arrested. The court framed three issues: arguable case of rights violation, entitlement to the order, and costs. It found the Petitioner never lodged objection or appeal during land adjudication under Sections 26 and 29 of the Land Adjudication Act, nor sued to challenge the registration. He failed to show irreparable loss, and the balance of convenience tilted against him given the indefeasibility of the registered title under Section 26 of the Registration of Land Act. He also had an alternative remedy in the succession court. The motion was dismissed with costs.

Key legal issues

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01

Whether a conservatory order was warranted over the suit property pending the constitutional petition

Holding

No. The Petitioner failed to demonstrate an arguable case of rights violation, irreparable loss, or that the balance of convenience favoured him.

Reasoning

The suit land was first registered in 1990 in the name of Isaya Cheluget, who occupied it until his death in 2017. The Petitioner never lodged objection or appeal during adjudication nor sued to challenge the registration. A party claiming fraudulently acquired ancestral land must test title through trial, not obtain conservatory orders that would effectively grant possession before evidence is tested. The registered proprietor enjoys indefeasibility under Section 26 of the Registration of Land Act.

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02

Whether the Petitioner's remedies lay in the succession court rather than the constitutional petition

Holding

Yes. The Petitioner knew of the Kericho succession cause and could move the succession court, as he had done in the Kisumu citation case.

Reasoning

The Petitioner had attached to his affidavit the summons for confirmation of grant in Kericho H.C. Succession Cause No. 14 of 2017, so he knew of it before filing the petition. Nothing prevented him from seeking the orders he desired in the succession court, which was the true forum for challenging the grant obtained by the administrators.

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Legal principles established

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  • Under Section 26 of the Registration of Land Act, the court is obliged to treat the person registered in the register as the absolute and indefeasible owner of the land.
  • Challenges to land registration arising from adjudication should first have been pursued through objection or appeal under Sections 26 and 29 of the Land Adjudication Act.

Court orders

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  1. 1.The Petitioner's notice of motion dated 18th June 2018 is dismissed with costs.

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 159; Sixth Schedule Article 19
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2014Rules 20 and 21
  • Land Adjudication Act, Chapter 284Sections 26 and 29
  • Registration of Land Act No. 3 of 2016Section 26
Jurisdiction invoked
Articles 22, 23 and 159, Sixth Schedule Article 19 of the Constitution; Rules 20 and 21 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure Rules, 2014

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, "Francis Okech Ognedo v Raeli Chepkurgat Cheluget & 5 others [2019] KEELC 4590 (KLR)", Case Analysis (2019). Notice of motion dated 18th June 2018 (petition filed contemporaneously). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4590/eng@2019-02-20

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