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ELCAllowedELC E005 of 2020· [2022] KEELC 970 (KLR)

Alinoor Abdi Elmi v Florine Cherono Opeyo & Cornelia Chelangat Cheruiyot (Sued as the legal representatives of the estate of Paul Kipchirchir Cheruiyot alias Paul Cheruiyot) & 2 others [2022] KEELC 970 (KLR)

Environment and Land Court
3 March 2022
2,742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Kericho Environment and Land Court confirmed that a buyer who traces a clear chain of ownership keeps the land, and a competing title obtained improperly can be cancelled.

What this practically means

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Executive summary

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The Plaintiff, Alinoor Abdi Elmi, sued the legal representatives of the estate of the late Paul Kipchirchir Cheruiyot, the Chief Land Registrar and the Director of Survey, seeking a permanent injunction, declarations that Kericho/Municipality Block 5/230 (formerly un-surveyed Plot No. 17 Kericho/Municipality Block No. 631/723) belonged to him, and cancellation of the title held by the deceased. Interlocutory judgment was entered after the Defendants failed to enter appearance or file a defence, and the suit proceeded to formal proof on 1 November 2021. The Plaintiff testified through himself and Mansoor Nandilal Maniklal, tracing the chain of title from the original allottee Leah Njeri Njoroge (1984 allotment and 99-year lease) through a 1994 sale to Nandilal, a 2003 sale agreement to the Plaintiff, and registration of the Plaintiff on 9 October 2019 pursuant to a confirmed grant in a succession cause. The court framed two issues: entitlement to the reliefs sought and costs. It held that although the suit was undefended, the Plaintiff still had to prove his case on a balance of probabilities, which he did. Relying on sections 24(a), 25(1) and 26(1) of the Land Registration Act, the court found the Plaintiff the absolute and indefeasible proprietor, unaffected by any proof of illegality or fraud. The Defendants' competing title was declared null and void. Judgment entered for the Plaintiff with a permanent injunction, declarations, an order for cancellation of the deceased's registration within 30 days, and costs at the lower scale given the undefended nature of the suit.

Key legal issues

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01

Whether the Plaintiff is the lawful proprietor of the suit land

Holding

Yes. The Plaintiff proved a chain of title from the original allottee Leah Njeri Njoroge through Nandilal to himself, culminating in registration on 9 October 2019 pursuant to a confirmed grant; his first registration vested absolute ownership under section 24(a) and indefeasibility under section 25(1) of the Land Registration Act.

Reasoning

The court traced the documentary chain: allotment to Leah Njeri Njoroge in 1984, transfer to Nandilal Cherenik Nandilal, sale agreement of 14 June 2003 to the Plaintiff, and title issued on 9 October 2019 following confirmation of grant. The Defendants entered no appearance and produced no evidence. The Plaintiff's uncontroverted evidence satisfied sections 24(a) and 25(1) of the Land Registration Act, and no proof was adduced that his title was fraudulently or illegally acquired.

p. 4
02

Whether the 1st Defendant's competing title over the same parcel should be cancelled

Holding

Yes. The title held by the late Paul Kipchirchir Cheruiyot was declared null and void and the Chief Land Registrar was ordered to cancel that registration within 30 days.

Reasoning

There were two competing titles to the same parcel. The Plaintiff alleged fraud in the procurement of the 1st Defendant's title; the Defendants adduced no evidence to counter this. Section 26(1) of the Land Registration Act removes protection from titles acquired illegally, unprocedurally or through a corrupt scheme. The Plaintiff's own title, being unimpeached, prevailed, warranting cancellation of the competing registration.

p. 4
03

Whether a permanent injunction should issue against the 1st Defendant

Holding

Yes. A permanent injunction issued restraining the 1st Defendant from entering, developing, subdividing, transferring, selling or otherwise interfering with the suit land.

Reasoning

Relying on Giella vs Cassman Brown as submitted by the Plaintiff, the court found the Plaintiff had established the validity of his title against the 1st Defendant's competing title. Having proved ownership and obtained cancellation of the rival title, the Plaintiff was entitled to the permanent injunction sought to protect his proprietorship.

p. 4

Legal principles established

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  • A registered proprietor's title is protected, but the protection is removed where the title is procured through fraud or misrepresentation to which the person is proved to be a party, or where it is procured illegally, unprocedurally or through a corrupt scheme
  • Even in an undefended suit, the plaintiff bears the duty to prove the case on a balance of probabilities

Court orders

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  1. 1.A permanent injunction restraining the 1st Defendant by itself or its agents from unlawful entry, licensing, developing, subdividing, transferring, selling and/or dealing or interfering with land parcel Kericho/Municipality Block 5/230
  2. 2.A declaration that all that parcel of land known as Kericho/Municipality Block 5/230 formally (un-surveyed Plot No. 17 Kericho/Municipality Block No. 631/723) lawfully belongs to the Plaintiff as purchaser for valuable consideration
  3. 3.A declaration that the alleged title currently held by the late Paul Kipchirchir Cheruiyot alias Paul Cheruiyot in respect of the same property is null and void
  4. 4.The Chief Land Registrar Kericho to cancel the registration of the late Paul Kipchirchir Cheruiyot alias Paul Cheruiyot in Kericho/Municipality Block 5/230 within 30 days from the date of delivery of the judgment
  5. 5.Costs to the Plaintiff at the lower scale since the suit was undefended

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80
  • Civil Procedure ActSection 27(1)
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Giella vs. Cassman Brown
    [1973] EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (sued as a plaint in ELC E005 of 2020)

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, "Alinoor Abdi Elmi v Florine Cherono Opeyo & Cornelia Chelangat Cheruiyot (Sued as the legal representatives of the estate of Paul Kipchirchir Cheruiyot alias Paul Cheruiyot) & 2 others [2022] KEELC 970 (KLR)", Case Analysis (2022). ELC E005 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/970/eng@2022-03-03

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