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ELCDismissedELC Case No. 397 of 2012 (Formerly HCC 185 of 2007)· [2019] KEELC 4962 (KLR)

Hosea K. Kosgei v Peter Kiprop Arap Mase & 2 others [2019] KEELC 4962 (KLR)

Environment and Land Court of Kenya
24 January 2019
2,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's claim entirely, confirming that land titles cannot be cancelled without proof of fraud pleaded from the very start.

What this practically means

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Executive summary

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The Plaintiff, who described himself as son of the 1st Defendant, sued over land comprised in Nandi/Kombe/830, which the 1st Defendant had sub-divided into parcels 871–875, with some sold to the 2nd and 3rd Defendants. He sought a permanent injunction, removal of a restriction and rectification of the register, cancellation of the sub-division and titles, and alternatively a declaration of adverse possession, claiming entitlement to inheritance under Nandi customary law. The suit was heard ex parte on 27th November 2018, the Defendants and their advocates not attending. The court framed five issues. On the claim against the 1st Defendant, it held the suit had abated automatically under Order 24 Rule 4 of the Civil Procedure Rules because no substitution was sought within one year of the 1st Defendant's death, and that distribution of his estate fell within the sole jurisdiction of the succession court under the Law of Succession Act. The Plaintiff's own pleading that elders awarded him only parcel 875 (1.2 ha) undermined his claim to the whole 20 acres. On cancellation of title, section 26 of the Land Registration Act renders titles prima facie indefeasible, challengeable only for fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme; no such particulars were pleaded, and the corruption allegation in a witness statement was inadmissible. Rectification under section 80 likewise failed for want of pleaded fraud or mistake. The adverse possession claim failed for want of evidence of 12 years' adverse occupation, per Kasuve v Mwaani Investments. The suit was dismissed in its entirety, with each party bearing his own costs given the abatement and the Defendants' non-participation at trial.

Key legal issues

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01

Whether the Plaintiff had a reasonable cause of action against the 1st Defendant

Holding

No - the suit against the 1st Defendant abated upon his death as no substitution was effected within one year, and his estate falls under the Law of Succession Act for the succession court.

Reasoning

The 1st Defendant died during the pendency of the suit. The Plaintiff took out letters of administration but never sought substitution within one year or at all, so the claim abated automatically under Order 24 Rule 4 of the Civil Procedure Rules. Further, administration and distribution of the deceased's estate lies within the sole jurisdiction of the succession court under the Law of Succession Act. The Plaintiff also claimed the entire 20 acres contrary to his own pleading that the elders awarded him only parcel 875 of about 1.2 ha.

p. 2
02

Whether the sub-division and issuance of new titles should be cancelled

Holding

No - the Plaintiff pleaded and proved no fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme as required under section 26 of the Land Registration Act.

Reasoning

Section 26(1) renders a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or acquisition illegally, unprocedurally or through a corrupt scheme. The plaint contained no particulars of fraud or corruption. Corruption asserted only in a witness statement was inadmissible. No basis for cancellation under section 26(1) was therefore demonstrated.

p. 3
03

Whether the register should be rectified by removing the 3rd Defendant's name

Holding

No - the Plaintiff did not plead that the registration was obtained by fraud or mistake, nor that the 3rd Defendant knew of or contributed to it.

Reasoning

Under section 80 of the Land Registration Act, rectification requires proof that a registration was obtained, made or omitted by fraud or mistake, and a proprietor's title is protected unless he knew of, caused or substantially contributed to the fraud or mistake. The plaint contained no such plea and no particulars; the court accordingly found no basis for rectification.

p. 3
04

Whether the Plaintiff proved adverse possession

Holding

No - the Plaintiff adduced no evidence of occupation for the statutory period of 12 years in a manner adverse to the true owners' title.

Reasoning

The Plaintiff produced no evidence supporting the adverse possession claim. It was not demonstrated that he occupied the suit parcels for the statutory minimum of 12 years openly and adversely. As the adopted son of the registered owner, his occupation would more likely have been permissive, defeating adversity. The court applied the test in Kasuve v Mwaani Investments Ltd.

p. 3
05

Costs

Holding

Each party to bear his own costs, given the abatement against the 1st Defendant and the non-participation of the 2nd and 3rd Defendants at trial.

Reasoning

Although costs follow the event under section 27 of the Civil Procedure Act, the court departed from the general rule because the suit against the 1st Defendant had abated and the 2nd and 3rd Defendants did not participate in the trial. It was thus fair that each party bear their own costs.

p. 3

Legal principles established

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  • Where a sole defendant dies and no application for substitution is made within one year, the suit against that defendant abates automatically by operation of law.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership and may only be challenged on grounds of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
  • A party alleging fraud must plead it with particulars; allegations of fraud or corruption introduced only through a witness statement and not pleaded are not admissible.
  • Costs follow the event, but the court may in its discretion direct otherwise where the circumstances of the case warrant.

Court orders

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  1. 1.The Plaintiff's suit is dismissed in its entirety
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 4
  • Registered Land Act (repealed)
  • Law of Succession ActCap 160
  • Land Registration Actsection 26(1)
  • Land Registration Actsection 80
  • Land Registration Act2012 (generally)
  • Civil Procedure Actsection 27

Cases cited (2)

  • Kasuve Vs Mwaani Investments Ltd & 4 others
    [2004] 1 KLR 184
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title, rectification and customary land claims (Land Registration Act, 2012; Civil Procedure Rules)

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, "Hosea K. Kosgei v Peter Kiprop Arap Mase & 2 others [2019] KEELC 4962 (KLR)", Case Analysis (2019). ELC Case No. 397 of 2012 (Formerly HCC 185 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4962/eng@2019-01-24

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