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ELCPartially AllowedKericho ELC (formerly Kericho HCCC suits related); Plaint dated 4th May 2016 (amended 13th August 2018)· [2020] KEELC 1598 (KLR)

Johana Kipkemoi Rono v Paul Kipsigei Rono [2020] KEELC 1598 (KLR)

Environment and Land Court
28 May 2020
2,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kericho court ordered jointly-owned family land split into two equal titles, ruling that claims of sole ownership and fraud need solid documentary proof.

What this practically means

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Executive summary

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The Plaintiff, brother of the Defendant, sued for cancellation of the title to L.R No. 8939/31, registered in their joint names as tenants in common in equal shares, so that two separate titles could issue. He testified that the parties jointly bought the property from Vallabdas Mohandlal in 1989/1990, each contributing Kshs. 37,500 of the Kshs. 75,000 purchase price, and produced a copy title deed and official search evidencing joint registration. The Defendant claimed sole ownership, alleging his documents had been confiscated by police, but admitted he never conducted an official search and could not produce the sale agreement or receipts. He filed an amended defence and counterclaim seeking the Plaintiff's eviction, abatement of nuisance and a permanent injunction, and the Plaintiff raised a preliminary objection that the counterclaim was res judicata. The court held that joint registration was proved; the Defendant failed to prove sole ownership or fraud, which must be pleaded and proved to a standard above a balance of probabilities. The court further held that although the Defendant's three prior suits were not decided on the merits, they were dismissed as time-barred, and that determination could not be reopened, rendering the counterclaim res judicata. Judgment was entered for the Plaintiff: the title was ordered cancelled and the land sub-divided into two equal portions registered in each party's name, with the Defendant to surrender the original title deed, failing which the Deputy Registrar would execute the documents. Because the parties are brothers, each party bore his own costs, with sub-division costs shared equally.

Key legal issues

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01

Joint registration as tenants in common

Holding

The copy of title and official search showed joint registration in equal shares; the Defendant's contrary claim was unsupported by documentary evidence

Reasoning

The Plaintiff produced a copy title deed and certificate of official search showing joint registration as tenants in common in equal shares. The Defendant's assertion that the first title was issued in his sole name was unsupported by any document, and he conceded he never conducted an official search. His own pleadings in prior suits admitted joint registration.

p. 2
02

Proof of fraud

Holding

The Defendant failed to plead and prove fraud to the required standard

Reasoning

The Defendant alleged that the Plaintiff fraudulently had himself registered jointly, but produced no sale agreement or receipts and did not extract the register to support his claim of sole registration. Fraud is a serious accusation requiring clear and distinct pleading and proof above a balance of probabilities.

p. 3
03

Res judicata

Holding

The counterclaim was res judicata because the time-bar finding in Kericho HCCC No. 58 of 2009 and No. 79 of 2011 could not be reopened

Reasoning

Although the Defendant's prior suits were dismissed without a determination on the merits, the dismissal was expressly on limitation grounds under section 7 of the Limitation of Actions Act. That determination binds the parties and precludes relitigating the same issues by counterclaim in this suit.

p. 3
04

Plaintiff's entitlement to relief

Holding

The Plaintiff proved his case on a balance of probabilities and was entitled to cancellation and sub-division of the title

Reasoning

Having established joint registration as tenants in common in equal shares, the Plaintiff's prayer for cancellation of the joint title and issuance of two separate titles reflecting the parties' respective shares was merited; the Defendant's counterclaim was dismissed with costs.

p. 3

Legal principles established

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  • Allegations of fraud must be pleaded and proved to a standard higher than a balance of probabilities
  • A claim dismissed as time-barred on limitation grounds cannot be reopened as res judicata even where the prior dismissal was not on the merits

Court orders

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  1. 1.An order that L.R No. 8939/31 registered in the joint names of JOHANA KIPKEMOI RONO and PAUL KISPSIGEI RONO be cancelled and sub-divided into two equal portions, one to be registered in each party's name
  2. 2.The Defendant to surrender the original title deed for cancellation and execute all requisite documents to effect the sub-division; in default, the Deputy Registrar to execute the necessary documents
  3. 3.The costs of the sub-division to be shared equally between the Plaintiff and Defendant
  4. 4.Each party to bear his own costs of the suit, the parties being brothers

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 27
  • Civil Procedure RulesOrder 12 rule 6

Cases cited (4)

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Kericho HCCC No. 60 of 2004
  • Kericho HCCC No. 58 of 2009
  • Kericho HCCC No. 79 of 2011 (O.S)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land ownership and title dispute

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Johana Kipkemoi Rono v Paul Kipsigei Rono [2020] KEELC 1598 (KLR)", Case Analysis (2020). Kericho ELC (formerly Kericho HCCC suits related); Plaint dated 4th May 2016 (amended 13th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1598/eng@2020-05-28

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