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ELCAllowedELC Case 23 of 2017· [2020] KEELC 2480 (KLR)

Saima Jepkemboi v National Land Commission & 6 others [2020] KEELC 2480 (KLR)

Environment and Land Court
7 May 2020
EOE. O. Obaga
1,358 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court confirmed that a land allocation lawfully made to a buyer beats any later title obtained through fraud, and cancelled the competing title.

What this practically means

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Executive summary

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The Plaintiff sued seven Defendants, including the National Land Commission and the Attorney General, seeking injunctions, revocation of any competing lease or title, a declaration that she is the bona fide allottee and owner of LR No.209/13303 on Masaba Road, Nairobi, and an order compelling the 1st to 3rd Defendants to regularize the records and issue her a lease or title. She traced the allocation history from 1994: confirmation from Kenya Railways and the Nairobi City Council, approval of a Part Development Plan in 1995-1996, allotment letters culminating in the 1999 letter, release of deed plan No.210434 in December 1996, and payment of Kshs.590,500 in 2016. The title, however, was never processed; she later learned it had been issued to Weston Kipkosgei Langat and subsequently changed into the name of Faith Limo, allegedly on the same deed plan, with documents returned to the Lands Office as suspected fraudulent. The 6th and 7th Defendants did not enter appearance despite substituted service; the NLC and the Attorney General filed no defence. The court framed a single issue: whether the Plaintiff proved her case on a balance of probabilities. Finding her evidence uncontroverted and the particulars of fraud proved, and applying Justice Onyancha's decision in Albert Mae Gacci on cancellation of titles issued to grabbers, the court entered judgment for the Plaintiff in terms of all prayers (a) to (f) of the plaint, including costs. Judgment was delivered virtually on 7th May 2020 by E. O. Obaga, J.

Key legal issues

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01

Whether the Plaintiff proved her entitlement to LR No.209/13303 on a balance of probabilities

Holding

Yes; the Plaintiff followed every step in the allocation process, produced uncontroverted oral and documentary evidence, and proved the pleaded particulars of fraud

Reasoning

The court found the plot was lawfully allocated to the Plaintiff, a PDP was approved and a deed plan duly prepared; only processing of the title remained. The disappearance of records from the Lands Office was treated as typical of schemes to take away other people's plots. The alleged competing title was processed on the same deed plan, supporting fraud. The Defendants filed no defence and the evidence was uncontroverted.

p. 2
02

Whether a title issued to third parties could defeat the Plaintiff's allocation

Holding

No; a fraudulently processed title cannot supersede the Plaintiff's allocation and the court will cancel it

Reasoning

The court adopted Justice Onyancha's reasoning in Albert Mae Gacci that courts will not hesitate to cancel title issued to land grabbers. The title in issue was processed on the same deed plan No.210434 through day book entries suspected to be fraudulent, and documents had been returned to the Lands Office as fraudulent. Such a title yields to the Plaintiff's prior lawful allocation.

p. 2

Legal principles established

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  • A fraudulent title does not supersede a prior lawful allocation, and courts will not hesitate to cancel titles procured through fraud

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants in terms of prayers (a), (b), (c), (d), (e) and (f) of the Plaint dated 10th January 2017 and filed in Court on 12th January 2017
  2. 2.Injunction restraining the Defendants jointly and severally from processing, transferring, disposing, charging and/or releasing to any other party the title and/or property known as LR No.209/13303
  3. 3.Revocation of any lease and/or title relating to LR No.209/13303 issued to any party other than the Plaintiff
  4. 4.Declaration that the Plaintiff is the bonafide and legal allottee and owner of LR No.209/13303 and of Deed Plan No.210434
  5. 5.Order directing the 1st, 2nd and 3rd Defendants to regularize the records relating to proprietorship of LR No.209/13303 and issue a lease and/or title document to the Plaintiff within 60 days of the judgment
  6. 6.Injunction restraining the 6th and 7th Defendants from transferring, leasing, charging and/or dealing in any way with LR No.209/13303 Masaba Road Nairobi County
  7. 7.Costs to the Plaintiff

Authorities

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Cases cited (1)

  • Albert Mae Gacci Vs Attorney General & 4 others (2006) eKLR
    (2006) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution establishing the court, though not expressly quoted in the judgment)

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, "Saima Jepkemboi v National Land Commission & 6 others [2020] KEELC 2480 (KLR)", Case Analysis (2020). ELC Case 23 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2480/eng@2020-05-07

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