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ELCDismissedELC Appeal No. E001 of 2020· [2022] KEELC 1440 (KLR)

Joseph Kiprotich Bor v Tabutany Chepkoech Chebusit [2022] KEELC 1440 (KLR)

Environment and Land Court
10 February 2022
MOM.C. Oundo
6,313 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that when two people hold title deeds to the same land, the earlier, properly obtained title wins.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kericho against the judgment of Hon L Kiniale, Principal Magistrate, in Bomet ELC No. 7 of 2019, which had declared the Respondent the lawful proprietor of Kericho/Kapkimolwa/1629, cancelled the Appellant's title and ordered eviction. The dispute concerned competing titles to the same 2.55-hectare parcel, a subdivision of Kericho/Kapkimolwa/9 originally registered to Kipkoech Arap Chepkwony. The Respondent obtained her title on 6 March 2018 through transmission under a confirmed grant in Succession Cause No. 5 of 2017; the Appellant, who had occupied the land since 1972 claiming purchase from the Respondent's late husband, obtained his title later, on 25 May 2018, allegedly through the Land Board. The Appellant urged that the Respondent's suit was time-barred under Section 7 of the Limitation of Actions Act, that his occupation was an overriding interest under Section 28 of the Land Registration Act, and that the trial court ignored his evidence. The court, exercising first appellate jurisdiction, rehearsed the evidence and applied the principle that where two titles compete over the same land, the court must trace each to its root and the first in time prevails. The Respondent's title issued earlier through a court-confirmed succession process; the Appellant's title was registered after the original proprietor's death without probate proceedings, and no evidence showed how it was procured. The Appellant's grievance over the transmission, the court noted, should have been raised in the probate court. The appeal was dismissed with costs and the trial court's judgment upheld.

Key legal issues

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01

Validity of competing titles to Kericho/Kapkimolwa/1629

Holding

The Respondent's title, obtained first (6 March 2018) through transmission via a confirmed grant, prevails over the Appellant's later title (25 May 2018) allegedly obtained through the Land Board

Reasoning

Both parties held title deeds to the same parcel. Following Hubert L. Martin, the court traced each root of title. The Respondent's title issued through a confirmed succession grant was earlier in time; the Appellant's title was registered after the death of the original proprietor without probate proceedings and without evidence of how it came into being, so it could only have been obtained by fraud or mistake.

p. 6
02

Challenge to title under Sections 26 and 80 of the Land Registration Act

Holding

Title is prima facie indefeasible but may be challenged where acquired by fraud or misrepresentation, or illegally, un-procedurally or through a corrupt scheme; the court may order rectification where registration was obtained by fraud or mistake

Reasoning

The court analysed Section 26(1), noting its purpose of protecting real title holders from subsequent transactions, and Section 80(1) empowering rectification for fraud or mistake. In the absence of evidence rebutting the illegality of the Appellant's registration, his title was open to cancellation.

p. 7
03

Appellant's claim of adverse possession / limitation

Holding

The Appellant's limitation argument was not sustained; the suit land was never transferred to him and no title could pass before the appointment of legal representatives of the original owner's estate

Reasoning

The court recorded that the transactions were not reduced into agreements or effected by transfer; the title remained with the original proprietor until death, so no title was capable of passing until legal representatives were appointed. The Appellant's grievance over the succession transmission should have been raised in the probate court, not in this court, which would amount to sitting on appeal over a court of equal status.

p. 5

Legal principles established

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  • When faced with two or more titles over the same land, a court must investigate from the root of title, and the title that conforms to procedure and traces its root without a break should be upheld
  • Where there are two competing titles, the first in time prevails
  • A registered proprietor whose root of title is under challenge must go beyond the title instrument and prove the legality of the acquisition
  • A first appellate court must reconsider and assess the evidence and reach its own conclusions, but will not interfere with findings of fact unless based on no evidence, misapprehension of the evidence, or a wrong principle

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Costs of the Appeal awarded to the Respondent as prayed (the judgment states the Appeal 'is dismissed with cost as prayed')

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Registration ActSection 28
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1)
  • Land ActThe Land Act, 2012 (general reference)
  • Registered Land Act (repealed)general reference
  • Civil Procedure RulesOrder 7 rule 5

Cases cited (11)

  • Nelson Machoka Keraro vs Land Registrar Kisii & 3 Others
    [2019] eKLR
  • Jane Gatheca vs Priscilla Gitungu & Another (sic)
  • Permanent Market Society & 11 Others vs Salima Enterprises & 2 Others (sic)
  • Evanson Wambugu Gachugi vs Simon Wainaina Gatwiki & 2 Others (sic)
  • Giella vs. Cassman Brown
    [1973] EA 358
  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others
    [2016] eKLR
  • Wreck Motors Enterprises vs. The Commissioner of Lands and Others
    Civil Appeal No. 71 of 1997
  • Gitwany Investment ltd vs. Tajmal Ltd & 3 Others
    (2006) eKLR
  • Munyu Maina vs. Hiram Gathiha Maina
    [2013] eKLR
On appeal from
Bomet Principal Magistrate's Court
ELC No. 7 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court (Environment and Land Court appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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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, "Joseph Kiprotich Bor v Tabutany Chepkoech Chebusit [2022] KEELC 1440 (KLR)", Case Analysis (2022). ELC Appeal No. E001 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1440/eng@2022-02-10

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