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ELCDismissedKilgoris ELC Appeal (arising from KILGORIS PMCC ELC NO. 97 OF 2018)· [2021] KEELC 367 (KLR)

Peter Koipeitai Nengisoi v William Nyamari Isaac Ole Tureti (Sued as the Legal Representatives of the Estate of Justus Tureti Obara, Deceased) [2021] KEELC 367 (KLR)

Environment and Land Court of Kenya
14 December 2021
3,357 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 in Kilgoris confirmed that land titles obtained through fraud get no legal protection, and dismissed the appeal with costs.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Kilgoris against the judgment and decree of Hon. D.K. Matutu, Principal Magistrate, dated 28th May 2019 in Kilgoris PMCC ELC No. 97 of 2018, by which the Trial Court had found in favour of the Respondents, the legal representatives of the late Justus Tureti Obara. The Appellant advanced three clusters of grounds: that the Respondents lacked locus standi to prosecute the suit on behalf of the deceased; that the suit, filed on 29th June 2011, was time-barred under the Limitation of Actions Act, Cap 22; and that the Trial Court erred in its evaluation of the evidence. The deceased had been allocated Parcel No. 139 (Transmara/Moyoi/139) in the 1977 adjudication, but in 1994 the Adjudication Record was altered to substitute the Appellant, who obtained a title in 2001. The Court held that the Respondents held a Limited Grant Ad Litem issued 28th March 2018 and had been allowed substitution by consent, so proceedings were lawful. On limitation, following Richard Nyamao Oruoba v John Kirangas Korinko (Kisii ELC 127 of 2011), the Court held the claim was for recovery of land under Section 7 (12 years) and time ran from discovery of the fraud in October 2001, so the plaint was filed within time. On the merits, the Court found the Appellant's alleged Objection No. 321 irregular and unsupported - he was a minor in 1977 and the last registered objection was No. 183 - and that the alteration of the Adjudication Record was illegal, so the title could not enjoy legal protection. The appeal was dismissed with costs to the Respondents and the Trial Court's judgment upheld.

Key legal issues

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01

Locus standi of the Respondents to prosecute the suit on behalf of the deceased plaintiff

Holding

The Respondents had valid locus standi by virtue of a Limited Grant Ad Litem issued on 28th March 2018 and the court's leave by consent for substitution

Reasoning

The suit was filed by the deceased in 2011, transferred to the ELC, and after his death on 4 April 2017 the Respondents obtained a Limited Grant Ad Litem under Section 54 and the 5th Schedule expressly authorizing them to pursue Narok ELC Case No. 551 of 2017. The application for substitution was allowed by consent on 17 May 2018. The proceedings were therefore lawful and the locus standi ground failed.

p. 2
02

Whether the suit was time-barred under the Limitation of Actions Act, Cap 22

Holding

The claim was one for recovery of land under Section 7 (12 years), and time ran from discovery of the alteration in 2001, so the plaint of 29 June 2011 was filed within time

Reasoning

The deceased discovered in 2001, when seeking to pay for registration, that his name had been deleted from the 1977 Adjudication Record and the Appellant's name inserted. A Letter of 3rd October 2001 from the District Land Registrar confirmed the date of discovery. Following Richard Nyamao Oruoba v John Kirangas Korinko (Kisii ELC 127 of 2011), the Court held the claim fell under Section 7, not Section 4, and the 12-year period had not lapsed by 29 June 2011. The Appellant's alternative argument that time ran from the 1994 insertion was rejected because the insertion itself was disputed.

p. 3
03

Whether the Trial Court properly evaluated the evidence

Holding

The Trial Court correctly found for the Respondents; the purported Objection No. 321 relied on by the Appellant was irregular and the alteration of the Adjudication Record was illegal

Reasoning

The Appellant's name was not in the 1977 Adjudication Register (he was then a minor of 13). The Land Adjudication Officer testified that the last objection registered was No. 183, and the only objection relating to Parcel 139 (No. 9 by Samuel Mwangi) was dismissed with costs. The Appellant failed to produce any evidence of the purported Objection No. 321 or the forum before which it was heard. As an Appellate Court, the ELC held the Appellant had not discharged his duty to persuade it to set aside the Trial Court's judgment.

p. 5

Legal principles established

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  • A claim for declaration of ownership and eviction based on allegations of fraud in the adjudication records is governed by Section 7 (12 years) rather than Section 4 (3 years) of the Limitation of Actions Act
  • Limitation in land recovery runs from the date of discovery of the fraud, not the date of the contested insertion in the adjudication record
  • A title obtained through a fraudulent or irregular process cannot enjoy the protection accorded to first registration
  • An objection to an adjudication register must be filed within sixty days of publication under Section 26 of the Land Adjudication Act, Cap 284

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Costs of the Appeal are awarded to the Respondents
On appeal from
Principal Magistrate's Court, Kilgoris
KILGORIS PMCC ELC NO. 97 OF 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' courts in land matters

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, "Peter Koipeitai Nengisoi v William Nyamari Isaac Ole Tureti (Sued as the Legal Representatives of the Estate of Justus Tureti Obara, Deceased) [2021] KEELC 367 (KLR)", Case Analysis (2021). Kilgoris ELC Appeal (arising from KILGORIS PMCC ELC NO. 97 OF 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/367/eng@2021-12-14

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