Hillary Kibet Melly v Irene Jerono [2019] KEELC 4775 (KLR)
The bottom line
#Kenya's land registries trump long occupation: a registered buyer with a clean title will evict someone who bought earlier without Land Control Board consent.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of the plaintiff's registered title
The plaintiff's registered title is absolute and indefeasible as there was no proof of fraud, misrepresentation, illegality or corruption
The court traced the register: Plot 208 was subdivided and the resulting parcel 9331 registered to Ambrose Kipyego Tuygong, then transferred to the plaintiff who obtained a title deed after Land Control Board consent, stamp duty and registration. The defendant alleged fraud in the defence but adduced no evidence of fraud or illegality on the plaintiff's part. Sections 24, 25 and 26 of the Land Registration Act vested absolute ownership in the plaintiff free from unregistered claims.
Validity of the defendant's prior agreement with James K. Sum
The defendant's pre-subdivision purchase from Sum was a nullity for want of Land Control Board consent, and the parcel she bought was not clearly defined
The defendant bought Plot 10 (temporary), 1/8 acre of parcel 208, before subdivision, for Kshs.70,000 and took possession in 2006. However, the parcel bought was not clearly defined and it was not established that Plot 10 became parcel 9331. Sum never complied with the agreement, and no Land Control Board consent was obtained for the transaction, which under section 6 of the Land Control Act rendered it a nullity.
Whether a constructive trust could be raised against the plaintiff
The doctrine of constructive trust could not apply against the plaintiff, an innocent purchaser for value without notice
Although the defendant had been in occupation since 2006, the plaintiff purchased from the registered owner for value, paid the full consideration of Kshs.345,000, obtained Land Control Board consent, and received title without knowledge of the defendant's dealings. Equity will not impose a constructive trust on a bona fide purchaser without notice of wrongdoing, so the defendant's occupation could not defeat the plaintiff's registered interest.
Legal principles established
#- Registration of a person as proprietor of land vests in that person absolute ownership under section 24 of the Land Registration Act
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme (section 26)
- A sale of agricultural land without Land Control Board consent is a nullity under section 6 of the Land Control Act
Court orders
#- 1.Declaration that the plaintiff is the sole registered owner of all that parcel of land measuring approximately 0.06 hectares known as PIONEER/NGERIA BLOCK 1(EATEC) 9331
- 2.Order that the defendants vacate the plaintiff's parcel of land known as PIONEER/NGERIA BLOCK 1(EATEC) 9331 upon being given 45 days' notice
- 3.Permanent injunction restraining the defendant, her servants or agents from encroaching, constructing, wasting, disposing, alienating and/or trespassing onto the plaintiff's parcel of land known as PIONEER/NGERIA BLOCK 1(EATEC) 9331
- 4.Order directing and compelling the Land Registrar, Uasin Gishu County to cause to be lifted the restriction and caution registered against the register title of land parcel PIONEER/NGERIA BLOCK 1(EATEC) 9331 forthwith
- 5.Costs to the plaintiff
- Jurisdiction invoked
- First-instance claim under the Land Registration Act and Land Control Act; specific provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hillary Kibet Melly v Irene Jerono [2019] KEELC 4775 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4775/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.