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ELCAllowedELC Case No. 212 of 2013· [2019] KEELC 4736 (KLR)

Emmanuel Kipngetich v David Tarus [2019] KEELC 4736 (KLR)

Environment and Land Court of Kenya
24 January 2019
YAY.M. Angima
1,327 words in judgment
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The bottom line

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A Kenyan court confirmed a co-owner of family land can get his share partitioned alone, and unproven fraud claims will fail.

What this practically means

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Executive summary

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The plaintiff sued the defendants claiming to be the registered owner of one acre out of Title No. Nandi/Kamobo/1427, held in common with the 1st defendant and the deceased mother of the 2nd defendant. He sought a mandatory injunction compelling the defendants to stop obstructing the survey and partition of the parcel so he could obtain a separate title. The defendants denied his claim, questioned his capacity to sue alone, asserted the property could not be partitioned because other co-proprietors were deceased, and alleged his registration was procured fraudulently through Kapsabet Succession Cause No. 32 of 1989, in which the 1st defendant had applied for rectification of the grant. At the hearing on 1st November 2018 the defendants' advocates' adjournment request was refused and the defendants did not participate; only the plaintiff testified, adopting his witness statement and documents. The court framed four issues. It held that the plaintiff, already registered as co-proprietor of one acre per the official search, was entitled to vindicate his property rights independently of his co-proprietors; that the legality of an interest acquired through succession could only be challenged before the succession court, and with no evidence of any rectification of grant his interest remained intact; and that the pleaded fraud was unproved since the defendants gave no evidence. Judgment was entered for the plaintiff: an injunction restraining obstruction of the survey and partition, a facilitative order authorising the Deputy Registrar to execute all documents necessary to effect the sub-division so each owner in common obtains a separate title, and costs of the suit awarded to the plaintiff and borne by both defendants.

Key legal issues

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01

Entitlement to partition of land held in common

Holding

The Plaintiff, registered as co-proprietor of one acre, is entitled to partition and a separate title.

Reasoning

The certificate of official search confirmed the Plaintiff was registered as co-proprietor entitled to one acre. That interest arose from succession proceedings in Kapsabet Succession Cause No. 32 of 1989. No evidence showed any rectification of the grant, so his interest remained intact. A co-proprietor may vindicate his rights independently of co-proprietors or their personal representatives, entitling him to compel partition.

p. 2
02

Alleged fraudulent acquisition

Holding

Fraud was not proved; the issue was answered in the negative.

Reasoning

The Defendants pleaded that the Plaintiff was fraudulently registered through Kapsabet Succession Cause No. 32 of 1989 and that rectification of the grant had been sought. However, they neither testified at trial nor tendered evidence showing the outcome of the rectification application. Fraud is a serious allegation requiring proof, and none was tendered.

p. 2
03

Costs of the suit

Holding

Costs follow the event; the successful Plaintiff was awarded costs.

Reasoning

Under section 27 of the Civil Procedure Act, costs are discretionary but normally follow the event. Citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co Ltd, the court found no good reason to deny the successful litigant costs, and awarded the Plaintiff costs against both Defendants.

p. 2

Legal principles established

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  • A co-proprietor registered in common may vindicate his property rights on his own, without joining his co-proprietors or their personal representatives.
  • The legality of an interest acquired through succession proceedings can only be challenged before the succession court, not in a collateral suit.
  • Allegations of fraud must be proved by evidence; unproven pleaded fraud fails, particularly where the party pleading it does not testify.

Court orders

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  1. 1.An injunction restraining the Defendants, their agents, servants or employees from obstructing the intended survey and partition of Title No. Nandi/Kamobo/1427
  2. 2.The Deputy Registrar of the court authorized to sign and execute all necessary forms, documents and papers to facilitate the sub-division and partitioning of the suit property so that each owner in common may obtain separate titles for their respective shares
  3. 3.The Plaintiff awarded costs of the suit to be borne by the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 27

Cases cited (1)

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to land (Environment and Land Court Act)

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, "Emmanuel Kipngetich v David Tarus [2019] KEELC 4736 (KLR)", Case Analysis (2019). ELC Case No. 212 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4736/eng@2019-01-24

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