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ELCAllowedELC Case (Eldoret), plaint dated 19th March 2015

Phylis T. Kibet & another v Nicholas Kiprotich Tarus [2020] KEELC 3242 (KLR)

Environment and Land Court
25 February 2020
MOM. A. Odeny
1,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land title obtained by fraud, proving even registered titles can be overturned when acquired dishonestly.

What this practically means

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Executive summary

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The plaintiffs sued the defendant by plaint dated 19th March 2015 seeking a declaration that they are the rightful owners of LR. No. Kiplombe/Kiplombe Block 10 (Growel)/411, rectification of the register to remove the defendant's name and substitute theirs, costs and interest. They testified that their mother bought the land in 2005 from David Kimutai Rotich and later gifted it to them, whereupon they were registered. On discovering the land registered in the defendant's name, they reported to the Uasin Gishu Land Registrar, who summoned the defendant; he ignored the summons. The defendant also sold the land to a third party who successfully recovered the purchase price in Eldoret CMCC No. 244 of 2018. The defendant was duly served with summons, plaint and hearing notices but neither entered appearance nor filed a defence, so the suit proceeded by formal proof. The court framed two issues: whether the defendant fraudulently acquired title, and whether the plaintiffs are the rightful owners. Applying Section 26 of the Land Registration Act on indefeasibility of title and its fraud exceptions, and Section 80(1) on rectification, and following Court of Appeal authority including Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua, the court found the plaintiffs had proved fraud on a balance of probabilities. Judgment was entered for the plaintiffs with a declaration of ownership, an order for rectification of the register, and costs plus interest against the defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendant fraudulently acquired title to the suit land
  2. 2.Whether the plaintiffs are the rightful owners of the suit land

Key legal issues

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01

Whether the defendant fraudulently acquired title to the suit land

Holding

Yes - the defendant failed to defend the suit; the evidence, including the Land Registrar's unanswered summons and the refund judgment in favour of a third-party purchaser, showed fraudulent acquisition.

Reasoning

The defendant was duly served but neither entered appearance nor filed a defence, so the suit proceeded by formal proof. The plaintiffs traced their title through a gift from their mother, who had purchased the land in 2005 and was duly registered. When the plaintiffs discovered the land registered in the defendant's name, the Land Registrar summoned him and he ignored the summons. He also sold the land to a third party who recovered the purchase price in Eldoret CMCC No. 244 of 2018, demonstrating fraud.

p. 2
02

Whether an indefeasible title under Section 26 of the Land Registration Act can be impeached

Holding

Yes - indefeasibility yields to proof of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme, and the court may then order rectification under Section 80(1).

Reasoning

Section 26 protects the registered proprietor as absolute and indefeasible owner, but expressly subjects the title to challenge where the proprietor is party to fraud or misrepresentation or where the title was acquired illegally, unprocedurally or through a corrupt scheme. Once such fraud is proven on a balance of probabilities, the court has power under Section 80(1) to cancel or amend the registration and rectify the register.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme.
  • The court is empowered to order rectification of the register where a registration was obtained, made or omitted by fraud or mistake.

Court orders

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  1. 1.A declaration that the plaintiffs are the rightful owners of LR. NO. KIPLOMBE/KIPLOMBE BLOCK 10 (GROWEL)/411
  2. 2.An order authorizing the Land Registrar Uasin Gishu County to rectify the register by removing the name of NICHOLAS KIPROTICH TARUS and replacing it with the name of the plaintiffs
  3. 3.Costs of the suit as well as interest to be paid by the defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Sections 26 and 80(1) of the Land Registration Act, 2012

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I have considered the pleadings, the evidence tendered, the submissions and the relevant authorities and find that the plaintiffs have proved their case against the defendants on a balance of probabilities.
p. 2Standard of proof and finding on fraud
A declaration is hereby issued that the plaintiffs are the rightful owners of LR. NO. KIPLOMBE/KIPLOMBE BLOCK 10 (GROWEL)/411
p. 2Final orders - declaration of ownership
An order is hereby issued authorizing the Land Registrar Uasin Gishu County to rectify the register in respect of LR. NO. KIPLOMBE/KIPLOMBE BLOCK 10 (GROWEL)/411 by removing the name of NICHOLAS KIPROTICH TARUS and replacing it with the name of the plaintiffs.
p. 2Final orders - rectification of register

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, "Phylis T. Kibet & another v Nicholas Kiprotich Tarus [2020] KEELC 3242 (KLR)", Case Analysis (2020). ELC Case (Eldoret), plaint dated 19th March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3242/eng@2020-02-25

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