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ELCAllowedCivil Case No. 7 of 2013· [2021] KEELC 4364 (KLR)

Fredrick Idiama Emojong v Xepherio Mang’eni Manyaru & 2 others [2021] KEELC 4364 (KLR)

Environment and Land Court
17 February 2021
3,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court cancelled four fraudulently created land titles, confirming that buyers who pay in full and take possession are protected by equity.

What this practically means

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Executive summary

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The plaintiff sued the three defendants alleging that they fraudulently caused the sub-division of his parcel S. Teso/Angoromo/7331 (0.46ha) into four resultant titles registered in their names, and sought cancellation of the resultant titles, reversion of the land to him, an order to the District Land Registrar to recall and nullify the titles, eviction, costs and interest. The defendants denied his ownership, contending his title was obtained irregularly and was void for want of Land Control Board consent and for breaching section 55(1) of the Law of Succession Act as intermeddling with a deceased estate. The court found it undisputed that the plaintiff was registered owner at the time of the sub-division, that the 1st defendant carried out the sub-divisions without the plaintiff's authority, and that the 1st defendant had himself irregularly procured registration as owner by 2009, before the probate ruling of 11/3/2015 he relied upon. The Land Control Board consent objection failed because consent had been obtained in 2001. Section 55(1) did not apply since the plaintiff acquired title after confirmation of the grant; using it as a defence after receiving full payment and giving possession would amount to unjust enrichment. The contract showed the vendor sold his entire 0.46ha share, and the ½ acre claim was an afterthought. The probate court's findings did not alter the contractual relationship. The court entered judgment for the plaintiff as prayed in the plaint.

Key legal issues

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01

Whether the defendants' sub-division and registration of resultant titles over the plaintiff's parcel was irregular

Holding

Yes - the 1st defendant acquired title irregularly and the consequent sub-divisions were irregular and ought to be cancelled

Reasoning

It was undisputed that the plaintiff was the registered owner at the time of sub-division, that the 1st defendant carried out the sub-divisions without the plaintiff's authority or consent, and that the plaintiff never signed transfer documents. The sub-division on 27/7/2012 predated the probate ruling of 11/3/2015, and the 1st defendant was already registered as owner by 2009 without any court order. The probate order could not cure irregularities already undertaken.

p. 3
02

Whether the plaintiff's title was void for want of Land Control Board consent

Holding

No - the title was issued pursuant to a grant and with an attendant Land Control Board letter of consent

Reasoning

The plaintiff produced a mutation dated 23/12/2001 with an application for Land Control Board consent to subdivide and a letter of consent issued on 5/12/2001 for partitioning L.R No. 348 into six plots. The consent requirement was therefore satisfied, defeating the defendants' objection under the Land Control Act.

p. 3
03

Whether the sale before confirmation of grant amounted to intermeddling under section 55(1) of the Law of Succession Act

Holding

No - the provision was inapplicable because the plaintiff did not acquire his title before confirmation of the grant, and the defence would amount to unjust enrichment

Reasoning

The plaintiff obtained title after the grant was confirmed on 3/3/2008 and his inclusion as beneficiary. The 1st defendant sold his identifiable share, received the entire purchase price and put the plaintiff in possession. Using section 55 as a shield after receiving full payment would enrich the defendant unjustly; equity treats as done that which ought to have been done.

p. 4
04

What was the extent of the land sold - ½ acre or the whole 0.46ha share

Holding

The contract clearly stated the vendor sold his entire share of 0.46ha; the 1st defendant's claim of ½ acre was an afterthought

Reasoning

The 1st defendant did not deny his signature on the sale agreement dated 5/11/2002, which expressly stated he wanted to sell all his share (0.46ha). The probate court had declined to determine the acreage dispute, the defendants led no evidence on it and never disputed payment of the purchase price.

p. 4
05

Effect of the ruling in Succession Cause No. 3 of 2000 on the parties' contractual relationship

Holding

The probate findings did not alter the contractual relationship; the 1st defendant remained mandated to transfer the title to the plaintiff

Reasoning

The probate ruling directed substitution of names but expressly left questions of possession and the sale transaction to other forums. Even if the 1st defendant used the order to have his name entered in the register, he remained bound under the contract of sale to transfer the land to the plaintiff.

p. 4

Legal principles established

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  • He who alleges fraud bears the burden of proving it, and the standard of proving fraud is higher than on a balance of probabilities
  • A party who is not the registered owner and who acts without authority of the registered owner cannot regularise unauthorised sub-divisions and cancellations through a court order obtained after the fact
  • Invoking section 55 of the Law of Succession Act as a defence after receiving the entire purchase price and putting the purchaser in possession would amount to unjust enrichment; equity considers as done that which ought to have been done

Court orders

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  1. 1.Judgment entered for the plaintiff as prayed in the plaint
  2. 2.Cancellation of titles South Teso/Angoromo/8424, 8425, 8426 and 8427 and reversion of the title to South Teso/Angoromo/7331 in the names of the plaintiff (as prayed in the plaint)
  3. 3.Order to the District Land Registrar Busia/Teso to recall the resultant fraudulent titles and cause their nullification (as prayed in the plaint)
  4. 4.Eviction of the defendants, their servants and/or agents from the four resultant titles (as prayed in the plaint)
  5. 5.Costs of the suit and interest (as prayed in the plaint)

Authorities

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Legislation

  • Law of Succession Act (Cap 160)section 55(1)
  • Law of Succession Act (Cap 160)section 82(b)(ii)
  • Land Control Actsections 6 and 8
  • Evidence Actsections 107 and 109

Cases cited (1)

  • Arthi Highway Developers Limited Vs West end Butchery Limited & 6 others
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Fredrick Idiama Emojong v Xepherio Mang’eni Manyaru & 2 others [2021] KEELC 4364 (KLR)", Case Analysis (2021). Civil Case No. 7 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4364/eng@2021-02-17

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