Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2021] KEELC 2796 (KLR)

Hellena Cheserem and Charles Kangogo Cheserem (suing for and on behalf of the Estate of the Late Augustine Kiptoo Cheserem) v Agricultural Development Corporation & another [2021] KEELC 2796 (KLR)

Environment and Land Court
17 June 2021
DOD. O. Ohungo
4,309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Nakuru dismissed a family's claim to Ndabibi land because they relied on a handwritten note instead of formal allocation documents.

What this practically means

#

Executive summary

#
The plaintiffs, administrators of the estate of the late Augustine Kiptoo Cheserem, sued over land at Ndabibi. They alleged that the deceased was allocated 25 acres (plot 20591/329) in 1999, that the offer was increased to 41 acres in 2002, and that the deceased paid KShs 820,000 to the 1st defendant's subsidiary, Lands Limited, taking possession and developing the land which they contended was LR No. 20591/55. They sought injunction, inhibition, specific performance, cancellation of the 2nd defendant's title, special and general damages. The 1st defendant maintained that only plot 20591/329 was allocated and that plot 20591/55 had been allocated to another person in 1998; the 2nd defendant claimed to have bought the land and obtained title in 2007 but called no evidence. The court framed two issues: whether the deceased was allocated LR No. 20591/55 and whether the plaintiffs were entitled to the reliefs sought. It held that the formal documents only supported allocation of plot 20591/329 and that the alleged change of number rested on a casual handwritten endorsement whose original was not produced, by a Managing Director who could not recall the date. The private surveyor who showed the plot had no demonstrated authority. On the 2nd defendant's title, the plaintiffs produced neither title nor search, pleaded no particulars of fraud, and failed to meet the elevated standard of proof for fraud. The suit was dismissed. Notably, because the 1st defendant received and retained the deceased's money and offered a refund, the court ordered the 1st defendant to bear its own costs, while the plaintiffs were to pay the 2nd defendant's costs. The court declined to order a refund since it was not pleaded.

Key legal issues

#
01

Whether the deceased was allocated LR No. 20591/55

Holding

No. The formal documents supported allocation of plot No. 20591/329 (25 acres), later increased to 41 acres, but the alleged change of plot number to 20591/55 rested only on a casual handwritten endorsement whose original was not produced

Reasoning

The initial allocation of plot 20591/329 was communicated formally; a change of plot number would equally have been expected in formal form. The Managing Director's handwritten endorsement had no formal support, its original was not produced, and the private surveyor who pointed out the plot had no demonstrated authority from the 1st defendant. The 1st defendant had also advised in 2009 that plot 20591/55 was allocated to another person in 1998.

p. 4
02

Whether the plaintiffs could cancel the 2nd defendant's title

Holding

No. The plaintiffs neither produced the title nor a certificate of search, pleaded no particulars of fraud, and did not prove illegality, unprocedurality or a corrupt scheme

Reasoning

Section 26 of the Land Registration Act makes a certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on proved fraud/misrepresentation or acquisition that was illegal, unprocedural or through a corrupt scheme. Fraud is a serious accusation requiring distinct pleading and proof above a balance of probabilities; the plaintiffs pleaded and proved neither. The burden lay on the plaintiffs under sections 107 and 108 of the Evidence Act.

p. 5

Legal principles established

#
  • A certificate of title is prima facie evidence of ownership and may only be challenged on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme (Section 26, Land Registration Act)
  • Fraud must be clearly and distinctly pleaded and proved to a standard above a balance of probabilities but below the criminal standard
  • Registered ownership of land must be formally proven (e.g. by title or certificate of search); a party's admission in pleadings alone is insufficient and the burden lies on the party who would fail if no evidence were given
  • The court cannot grant relief which is not sought in the pleadings

Court orders

#
  1. 1.The plaintiffs' case is dismissed
  2. 2.The 1st defendant shall bear its own costs of the suit
  3. 3.The plaintiffs shall pay the 2nd defendant's costs of the suit

Authorities

#

Legislation

  • Evidence ActSections 107, 107(1), 108, 112
  • Land Registration ActSection 26(1), (2); Sections 34, 35
  • Land Control ActSection 6(1)
  • Registration of Titles Act (repealed)Section 23
  • Civil Procedure RulesOrder 24 rules 1 and 4(3)
  • Law Reform ActSection 2(1) and 3(a)

Cases cited (10)

  • Charterhouse Bank Limited vs Frank N. Kamau
    [2016] eKLR
  • Karuru Munyororo vs Joseph Ndumia Murage & another
    Nyeri HCCC No. 95 of 1988
  • Peris Wanja Cini & Another vs Paul Murithi Njau & others
    [2016] eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    C. A No. 239 of 2009
  • Kenya Medical Supplies Agency (Kemsa) vs Mavji Kanji Hirani & Others
    [2018] eKLR
  • Esther Ndegi Njiru & Another vs Leonard Gatei
    [2014] eKLR
  • Joseph Kagunya vs Boniface K Muli & Others
    [2018] eKLR
  • Arthi Highway Developers Limited Vs. West End Butchery Limited & 6 Others
    [2015] eKLR
  • H.N. Gathire vs Wanjiku Munge
    [1979] KLR 50
  • Harambee Co-operative Savings & Credit Society vs Mukinye Enterprises Limited
    [1983] KLR 611
Jurisdiction invoked
Original civil suit (plaint) under the Civil Procedure Act; court exercised first-instance jurisdiction over a land dispute

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hellena Cheserem and Charles Kangogo Cheserem (suing for and on behalf of the Estate of the Late Augustine Kiptoo Cheserem) v Agricultural Development Corporation & another [2021] KEELC 2796 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2796/eng@2021-06-17

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