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ELCPartially AllowedELC Case Suit No. 22 of 2017· [2021] KEELC 1010 (KLR)

Saitoti Sintimaiyio Koisamu & Kilesi Sintimatio Koisamu (Suing as the Legal Representatives of the Estate of Sindimaiyo Ole Koisamu (Deceased) v Sakinya Ole Tuukuo & 3 others [2021] KEELC 1010 (KLR)

Environment and Land Court of Kenya
8 November 2021
MKMohamed Kullow
2,325 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 Narok court cancelled a land title registered to a man who died nine years before it was issued, and divided the land equally between two families.

What this practically means

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Executive summary

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The plaintiffs, legal representatives of the estate of Sindimaiyo Ole Koisamu, sued the defendants over land parcel L.R. No. Narok/Cis/Mara/Nairagie-Enkare/85. They claimed their father settled on the land in 1960, that the defendants procured title unprocedurally on 11th March 2011, and sought a declaration that the title was held in trust in equal undivided shares, pleading fraud and breach of trust. The defendants denied the claims and counterclaimed for a declaration of ownership, exhumation of the plaintiffs' deceased father's body, and eviction of the plaintiffs. The court framed three issues: fraudulent acquisition, joint ownership, and appropriate orders. On fraud, the court found the defendants' deceased father, Kisera Ole Tuukuo, died in 1975, yet the land was first registered in his name in 1984; the adjudication register was never produced and the statutory signature requirements under Section 23(6) of the Land Adjudication Act could not have been met. Kisera also sat on the adjudication committee deciding land in which he had a direct interest, contrary to Section 8(1). The court held the title was fraudulently and illegally acquired and that a court cannot sanction illegality, notwithstanding the prima facie protection of Section 26 of the Land Registration Act. On joint ownership, the court found both families occupied the land with distinct half shares, opting for joint allocation, informed by witness testimony, burial patterns, and Maasai communal custom. The suit was allowed: the defendants' title was cancelled, equal shares declared, fresh titles ordered after survey, the counterclaim dismissed, and costs awarded to the plaintiffs.

Key legal issues

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01

Whether the suit land was fraudulently acquired and registered in the defendants' names

Holding

Yes - the title was fraudulently and illegally acquired; the land was first registered in 1984 in the name of Kisera Ole Tuukuo who had died in 1975

Reasoning

The court noted the deceased was required to have boundaries set by the demarcation committee but there was no indication this was done, and as a member of the adjudication committee he was conflicted under Section 8(1) of the Land Adjudication Act. Since the deceased died in 1975 yet the first registration entry was in 1984, the adjudication register could not have been signed as required by Section 23(6); the defendants produced no adjudication register. Fraud was proved on a balance of probabilities.

p. 3
02

Whether the suit land was jointly owned

Holding

Yes - the land was jointly occupied by both families, each family allocated a distinct half share, though they opted for joint allocation

Reasoning

PW1 testified the plaintiffs' father settled first and both families opted for joint allocation. The defendants called no independent witness to contradict this, and the deceased Kisera never attempted to evict the plaintiffs during demarcation. Members of both families were buried on the land over the years, and the court took judicial notice of Maasai communal living traditions, concluding each family held a distinct half share.

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Legal principles established

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  • A registered title is prima facie evidence of ownership but may be challenged on the ground of fraud or where acquired illegally, unprocedurally or through a corrupt scheme
  • A court cannot sanction an illegality; a title obtained by fraud is null and void

Court orders

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  1. 1.Declared that the title to the suit property L.R. No. NAROK/CIS/MARA/NAIRAGIE/ENKARE/85 registered in the names of the defendants is cancelled
  2. 2.Declared that the suit property is being occupied in divided and equal shares between the plaintiffs and the defendants
  3. 3.Ordered the Land Registrar in Narok to issue separate and individual titles to each of the families of the plaintiffs and the defendants after the suit land has been surveyed to ascertain the exact size of each portion, each family getting an equal share
  4. 4.The counterclaim filed by the defendants is dismissed
  5. 5.The plaintiffs shall have the costs of the suit

Authorities

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Legislation

  • Land Adjudication ActCap 284; Sections 8(1), 20, 23, 23(6), 28
  • Land Registration ActSection 26(1)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act)

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, "Saitoti Sintimaiyio Koisamu & Kilesi Sintimatio Koisamu (Suing as the Legal Representatives of the Estate of Sindimaiyo Ole Koisamu (Deceased) v Sakinya Ole Tuukuo & 3 others [2021] KEELC 1010 (KLR)", Case Analysis (2021). ELC Case Suit No. 22 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1010/eng@2021-11-08

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