Samwel Kisang’ Cheboi & 2 others v Elisha Kipleting Murei & 7 others [2021] KEELC 1743 (KLR)
The bottom line
#The Kitale Environment and Land Court dismissed a community group's bid to reclaim 3,000-plus acres of land because other parties' titles had already been issued first.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs were entitled to a declaration of ownership of LR No. 4366 and nullification of the subdivision
The declaration and nullification were refused; the land had already been converted, subdivided and titled before the plaintiffs' 2012 grant
The evidence, including that of the Land Registrar, established that the RTA title was surrendered to the Government on 30/3/1989, converted to the RLA regime, and titles issued from 1989 pursuant to an area list. The plaintiffs' letter of allotment dates 7/7/1992 and their grant 27/6/2012, long after the defendants' interests had crystallised. A declaration of ownership of the whole parcel would therefore be improper.
Whether the defendants should be evicted and injuncted
Refused; the plaintiffs did not prove the extent of occupation or that the land was available for allocation when their grant issued
The plaintiffs bore the burden under sections 107 and 108 of the Evidence Act to show that the land was still available for allocation as at 27/6/2012. They produced no evidence of the size of land occupied by either side, and the defendants' interests appear to have preceded the plaintiffs' grant. There was accordingly no basis for eviction or injunction.
Whether the suit was res judicata
Not res judicata
The court examined the proceedings in Eldoret HCCC No. 190 of 1999, Kitale SPMCRC 2058 of 1999 and the ruling of Wanjiru Karanja J in Kitale HC Misc Civil Application No. 76 of 2005 and concluded the dispute was not finally determined between the parties in those proceedings.
Propriety of the process by which the defendants obtained their titles
The court criticised the process as tainted with impropriety but did not cancel the titles
The Land Registrar's evidence showed no Ministerial order sanctioning the RTA-to-RLA conversion, no purchase agreement, no proper subdivision supervised by the Director of Surveys, and transfer instruments not executed by the transferor government. The court nonetheless dismissed the suit and recommended that the National Land Commission and Director of Surveys consider the plaintiffs for allocation of available land.
Legal principles established
#- A party who desires a court to give judgment as to a legal right dependent on facts he asserts bears the burden of proving those facts
- The burden of proof in a suit lies on the person who would fail if no evidence at all were given on either side
- A grant of government land cannot issue over land that had already been converted to the RLA regime, subdivided and titled to other persons
- It is a mistake in land registration to have two grants in existence at the same time over the same land
Court orders
#- 1.The plaintiffs' suit as contained in the further amended plaint dated 8/5/2018 is dismissed
- 2.Each party shall bear their own costs of the suit
- 3.Recommendation that the National Land Commission and the Director of Surveys look into the plaintiffs' claim with a view to ascertaining the location and size of the land they occupy and consider them for allocation of land if available
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land (LR No. 4366, Kitale); specific constitutional/statutory provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Kisang’ Cheboi & 2 others v Elisha Kipleting Murei & 7 others [2021] KEELC 1743 (KLR)", Case Analysis (2021). Kitale ELC Civil Suit (further amended plaint dated 8/5/2018; formerly Eldoret-filed plaint dated 3/3/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1743/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.