Ol Kalaou West Farmers Co-operative Societies Ltd v David Kibue Kinyanjui [2019] KEELC 4704 (KLR)
The bottom line
#A Kenyan co-operative society lost its land title because it was created irregularly, and even an innocent title holder can lose such a title.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the trial magistrate's court vis-à-vis the Co-operative Tribunal
The trial magistrate's court had jurisdiction; the dispute was not one concerning the business of a co-operative society under Section 76 of the Co-operative Societies Act, and under Section 159 of the Registered Land Act such land disputes fall to the High Court or, within value limits, the Resident Magistrate's Court
The court distinguished Section 76 of the Co-operative Societies Act from Section 159 of the Registered Land Act, relying on the Court of Appeal's pronouncement on magistrates' courts' jurisdiction over land disputes and on Maraga J's reasoning that land ownership disputes are not the business of a co-operative society. The authorities cited by the Appellant were held distinguishable.
Ownership of parcel No. Nyandarua/Ol Kalou West/142
The Respondent, registered on 22nd May 1992 with a traceable root of title, held absolute ownership of the 36.35-hectare parcel
Relying on Sections 27 of the Registered Land Act and 24, 25 and 26(1) of the Land Registration Act, the court found the Respondent's title supported by the allotment letter, title deed and green cards, and confirmed by the surveyor's evidence and exhibits.
Excision of one acre from the Respondent's parcel to create No. Nyandarua/Ol Kalou West/879
One acre was excised from the Respondent's land un-procedurally, rendering the Appellant's title impeachable
The District Surveyor's evidence showed an amendment to the Registry Index Map reducing the Respondent's acreage from 36.35 to 35.36 hectares with no authorizing letter, after the Respondent had already obtained title. The Appellant failed to establish the root of its title.
Limitation of actions
The suit, filed on 20th April 2004, was not time barred as the cause of action accrued in 2000 when the fencing and cutting of trees occurred
Applying Sections 7, 9(1) and 26 of the Limitation of Actions Act, the court found the right of action accrued on dispossession/discovery in 2000, within the 12-year period.
Legal principles established
#- The Co-operative Tribunal's jurisdiction under Section 76 of the Co-operative Societies Act is confined to disputes concerning the business of a co-operative society and does not extend to land ownership disputes
- A title procured illegally, unprocedurally or through a corrupt scheme is impeachable under Section 26(1)(b) of the Land Registration Act even where the title holder was not a party to the vitiating factors
- A cause of action to recover land accrues on dispossession or on discovery of the fraud or mistake; where it accrued in 2000 and suit was filed in 2004, the claim is not time barred
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment of the trial court delivered on 26th October 2011, together with the orders issued therein, is upheld
- On appeal from
- Resident Magistrate's Court at Nyahururu
- Civil Case No. 116 of 2004
- Jurisdiction invoked
- Appeal from the subordinate court under the applicable appellate provisions; first-instance claim grounded on Sections 159 of the Registered Land Act (Cap 300) and Section 26(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ol Kalaou West Farmers Co-operative Societies Ltd v David Kibue Kinyanjui [2019] KEELC 4704 (KLR)", Case Analysis (2019). ELC Appeal No 3 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4704/eng@2019-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.