Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKericho ELC (number not stated in judgment)· [2020] KEELC 1596 (KLR)

Henry Kipngetich Terer v Cecilia Soi & Stanley Ngeno [2020] KEELC 1596 (KLR)

Environment and Land Court
28 May 2020
4,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan family that bought land with only an oral agreement decades ago kept it, while a deal done without probate authority was voided.

What this practically means

#

Executive summary

#
The Plaintiff, holder of limited letters of administration ad litem to the estate of his father Kipsoi Arap Maina, sued the Defendants for trespass on L.R. Kericho/Ndaraweta/2153, seeking their eviction. The 1st Defendant counterclaimed, asserting her husband purchased 5 acres from the deceased and the family had occupied it since 1998; the 2nd Defendant claimed under a land exchange with the Plaintiff's deceased brother, Zephania Marindany. The court first confirmed jurisdiction, holding that the dispute concerned occupation and title to land within Article 162(2)(b) and section 13 of the ELC Act, not succession. On the merits, the court found the 1st Defendant's oral purchase enforceable under the pre-2003 section 3(3)/3(7) regime because possession was taken in part performance, corroborated by the Plaintiff's own advocate's letter; the absence of Land Control Board consent was curable under section 8(1) of the Land Control Act, and her long occupation gave her an overriding interest under section 28 of the Land Registration Act. Her claim for mesne/special damages of Kshs. 30,600 failed for want of specific pleading and proof. As to the 2nd Defendant, the exchange was void because Zephania sold the deceased's land before confirmation of grant, amounting to intermeddling under the Law of Succession Act. The suit against the 1st Defendant was dismissed with judgment on her counterclaim, while the Plaintiff obtained eviction against the 2nd Defendant without costs.

Key legal issues

#
01

Jurisdiction of the ELC where a claim concerns land owned by a deceased person

Holding

The ELC has jurisdiction because the dispute concerns occupation and title to land, not distribution of an estate

Reasoning

The court distinguished the mandate of the probate court (distribution of estates) from the ELC's mandate under Article 162(2)(b) and section 13 of the ELC Act. Since the core question was whether the defendants acquired good title to portions of the suit land, issues of occupation and title fell squarely within the ELC's jurisdiction despite the deceased's registered ownership.

p. 3
02

Enforceability of an oral/unwritten sale of land pre-2003

Holding

Valid where part performance (possession) is proved, per section 3(7) proviso

Reasoning

The 1st Defendant's husband purchased 5 acres between 1979 and 1998 and the family took possession in 1998, corroborated by the Plaintiff's advocate's letter. Following Peter Mbiri Michuki, section 3(3) as amended in 2003 does not apply to earlier oral contracts coupled with part performance, so the absence of a written agreement did not invalidate the sale.

p. 3
03

Defect of missing Land Control Board consent

Holding

Curable under section 8(1) of the Land Control Act by extension of time

Reasoning

Although the 1st Defendant did not produce the consent, the court held it could exercise its discretion under section 8(1) to extend time since the Plaintiff knew of the purchase and occupation since 1998. The lack of consent therefore did not void the transaction.

p. 4
04

Exchange of land belonging to a deceased person before grant confirmation

Holding

Void; the 2nd Defendant acquired no title and eviction follows

Reasoning

Zephania Marindany sold/exchanged part of the deceased's land without a confirmed grant, contrary to sections 82(b)(ii), 55(1) and 45 of the Law of Succession Act, amounting to intermeddling. The exchange agreement was void, the Plaintiff proved his case against the 2nd Defendant, and the court declined to award costs against him since the estate's heirs instigated the transaction.

p. 5

Legal principles established

#
  • Before the 2003 amendment to section 3(3) of the Law of Contract Act, an unwritten agreement for sale of land was enforceable where possession was taken in part performance
  • A spouse in actual occupation of land for over 12 years acquires an overriding interest under section 28 of the Land Registration Act
  • A sale of immovable property of a deceased person before confirmation of grant is void as intermeddling
  • Special damages must be specifically pleaded and strictly proved

Court orders

#
  1. 1.The Plaintiff's suit against the 1st Defendant is dismissed in its entirety
  2. 2.Declaration that the 1st Defendant and Kipkemoi Elijah Soi are the beneficial owners of 5 acres of L.R. KERICHO/NDARAWETA/2153 and the encroachment by the Plaintiff is illegal, null and void
  3. 3.Injunction restraining the Plaintiff from interfering with the 1st Defendant's quiet possession of and trespassing on the five acres
  4. 4.Costs of the suit and counterclaim to be borne by the Plaintiff
  5. 5.Eviction order against the 2nd Defendant and any person cultivating or occupying the land under his authority
  6. 6.Injunction restraining the 2nd Defendant from interfering with the Plaintiff's quiet possession of 0.927 acres
  7. 7.Each party shall bear his own costs in the suit against the 2nd Defendant

Authorities

#

Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Law of Succession ActSections 3(3), 45, 55(1), 71, 82(b)(ii)
  • Law of Contract ActSections 3(3), 3(7)
  • Land Control ActSection 8(1)
  • Land Registration ActSection 28
  • Advocates ActSection 34

Cases cited (10)

  • Peter Mbiri Michuki v Samuel Mugo Michuki
    Civil Appeal No. 22 of 2013 [2014]eKLR
  • Martha Njeri Wanyoike & 2 others v Peter Macharia Mwangi & 4 others
    Civil Appeal No. 39 of 2012 [2016]eKLR
  • Mbaki & Others vs Macharia & Another
    (2005) 2 EA 206
  • Attorney General v Halal Meat Products Limited
    [2016] eKLR
  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR
  • National Social Security Fund Board of Trustees vs Sifa International Limited
    (2016) eKLR
  • Macharia & Waiguru vs Muranga Municipal Council & Another
    (2014) eKLR
  • Kadzo Charo v Alex Nzai Dzombo
    Civil Appeal Number 11 of 2018 [2019] eKLR
  • Benson Mutuma Muriungi vs C.E.O Kenya Police Sacco & another
    [2016]eKLR
  • In re Estate of M'Ngarithi M'Miriti
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Henry Kipngetich Terer v Cecilia Soi & Stanley Ngeno [2020] KEELC 1596 (KLR)", Case Analysis (2020). Kericho ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1596/eng@2020-05-28

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