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ELCDismissedELC Appeal No. 8 of 2019· [2021] KEELC 1012 (KLR)

John Kiptonui Korgoren v Pauline Chelangat Talam [2021] KEELC 1012 (KLR)

Environment and Land Court of Kenya
8 November 2021
3,471 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 dismissed a brother's challenge to his sister's land title, confirming that fraud must be clearly pleaded and proved, and estate claims need letters of administration.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Narok against the judgment of Hon. D.K. Matutu (PM) in Kilgoris PM MELC No. 88 of 2018, which had ordered the appellant's eviction from Land Parcel No. Transmara/Njipiship/14 and a permanent injunction in favour of the respondent following a trespass claim. The appellant, the respondent's brother, contended that the land, originally registered in the names of their deceased mother and the respondent, was fraudulently transferred to the respondent, that the parties were tenants in common holding for the family under customary trust, and that land control consents had not been obtained. The respondent maintained that the transfer occurred in the deceased's lifetime, that fraud was never pleaded or proved, and that the appellant lacked locus standi absent letters of administration. The court identified four issues: competency of the appeal, tenancy in common, trust, and fraud. It held the appeal competent as the respondent had responded to the new issues without prejudice. The green card showed proprietors in common in equal shares; since the title issued on 4th November 2010 during the deceased's lifetime (she died in 2013), no survivorship arose. Fraud was neither pleaded nor proved, and the Land Registrar was not a party. The appellant should have sought letters of administration and pleaded a counterclaim on trust. The appeal was dismissed as frivolous, vexatious and an abuse of process, the trial judgment upheld in its entirety, and, being a family dispute, no orders as to costs were made.

Key legal issues

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01

Competency of the appeal in light of new issues raised

Holding

The appeal was competent because the respondent had an opportunity to respond to the new issues in her submissions and would suffer no prejudice

Reasoning

Order 42 Rule 4 prohibits urging grounds not in the memorandum of appeal without leave, provided the affected party has a sufficient opportunity to contest them. The respondent had scrutinised and responded to the new issues in her submissions, so no prejudice arose and the appeal was competently filed.

p. 3
02

Tenancy in common between the respondent and the deceased

Holding

The green card showed the parties held the land as proprietors in common in equal shares; the transfer to the respondent occurred in the deceased's lifetime, defeating any survivorship claim

Reasoning

The green card recorded 'proprietors in common each holding equal (1/2) share'. In tenancy in common there is no survivorship and the deceased's share devolves to her estate. However, the title issued on 4th November 2010, during the deceased's lifetime, so the transfer was not defeated by her subsequent death in 2013.

p. 4
03

Alleged fraud and want of good title

Holding

Fraud was neither pleaded nor particularised, and was not proved; the respondent's title under Section 26 of the Land Registration Act stands

Reasoning

The appellant did not plead fraud in his defence, contrary to Order 2 Rules 4 and 10 of the Civil Procedure Rules, and did not discharge the burden of proving fraud or misrepresentation under Section 26 of the Land Registration Act. The complaint about the Land Registrar's removal of restrictions failed because the Registrar was not a party to the suit.

p. 4
04

Customary trust claim

Holding

The trust claim was not established; any such claim should have been raised by the appellant as administrator of the estate by way of counterclaim

Reasoning

The appellant lacked locus standi to pursue estate-related claims without letters of administration. The claim at trial was one of trespass, and the appellant, if he believed the land was held in trust for the family, ought to have obtained administration and pleaded a counterclaim. He did neither, so the trust issues fell by the way.

p. 4

Legal principles established

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  • Fraud must be specifically pleaded and particularised before it can found a challenge to title
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership unless challenged on the ground of fraud or illegality
  • In a tenancy in common there is no right of survivorship; the deceased's share devolves to the estate, and a beneficiary must obtain letters of administration to claim over the land
  • An appellate court on a first appeal re-evaluates the evidence but must make due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is dismissed as frivolous, vexatious and an abuse of the court process.
  2. 2.The Judgement and Orders of the trial Magistrate Hon. D.K. Matutu be and are hereby upheld in their entirety.
  3. 3.No orders as to costs.

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 28(b)
  • Land Registration ActSection 78(1)
  • Land Control Act, Cap 302Sections 6, 8 and 9
  • Civil Procedure RulesOrder 42 Rule 4
  • Civil Procedure RulesOrder 2 Rules 4 and 10

Cases cited (2)

  • Selle & Another vs Associated Motor Boat Company Ltd & Others
    [1968] 1EA 123
  • Isabel Chelangat vs. Samuel Tiro Rotich & 5 others
    (2012) eKLR
On appeal from
Senior Principal Magistrate's Court at Kilgoris
MELC No. 88 of 2018
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act over appeals from subordinate courts in land matters, per Order 42 of the Civil Procedure Rules

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, "John Kiptonui Korgoren v Pauline Chelangat Talam [2021] KEELC 1012 (KLR)", Case Analysis (2021). ELC Appeal No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1012/eng@2021-11-08

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