Farida Charity Cheruto & 2 others v Sarah Jelimo Boit [2022] KEELC 1073 (KLR)
The bottom line
#A Kenyan court dismissed a land fraud claim because the buyers couldn't prove their fraud allegations against a purchaser who had bought and occupied the land first.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the 0.03-acre footpath before subdivision
The footpath formed part of the Defendant's land, as she had purchased 0.5 acres in 2000–2002 and occupied the parcel from 2002
The Defendant purchased a total of 0.5 acres in three agreements (2000, 2001 and 2002) and took possession, planting trees on either side of the footpath she granted the 1st Plaintiff for river access. The 2nd Plaintiff only purchased in 2013 and never occupied. The Defendant was first in time and in occupation.
Whether the 1st Plaintiff could sell 0.04 acres to the 2nd Plaintiff in 2013
She could not; having sold 0.5 acres in 2002 she had no saleable interest remaining
The original parcel was approximately 0.98 Ha and the subdivisions totalled 0.95 Ha. Having sold 0.5 acres to the Defendant, the 1st Plaintiff wrongly believed the 0.04 acre remained available. Following Pius Muture v John Kaingu, once a person sold property he had no interest capable of selling to another.
Whether fraud was proved against the Defendant
No; the Plaintiffs' case rested on the wrong premise that the Defendant bought only 0.3 acres
The Plaintiffs alleged the Defendant acquired 0.17 acres more than purchased, but the Defendant in fact bought 0.5 acres and occupied 0.47 acres. Fraud must be distinctly alleged and strictly proved; on the evidence the particulars were not established to the required standard.
Legal principles established
#- Allegations of fraud must be pleaded and strictly proved on a standard higher than a balance of probabilities, though not beyond reasonable doubt
- A registered proprietor whose root of title is challenged must prove the legality of how the title was acquired, beyond the instrument of title itself
- A vendor who has sold his entire interest in land has no remaining interest capable of being sold to another person
- Documents purportedly signed by the Registrar are presumed to have been so signed unless the contrary is proved
Court orders
#- 1.The Plaintiffs' suit is dismissed
- 2.Costs of the suit awarded to the Defendant
- Jurisdiction invoked
- Original civil suit under the Land Registration Act; Environment and Land Court jurisdiction (no specific constitutional provision stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farida Charity Cheruto & 2 others v Sarah Jelimo Boit [2022] KEELC 1073 (KLR)", Case Analysis (2022). Not stated in judgment (Kapsabet ELC suit; plaint dated 27.01.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1073/eng@2022-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.