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ELCAllowedKilgoris PMCC ELC No. 96 of 2018 – Appeal· [2022] KEELC 2478 (KLR)

Kaipoi v Kukuu (Environment and Land Appeal 13 of 2021) [2022] KEELC 2478 (KLR)

Environment and Land Court of Kenya
13 July 2022
4,335 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

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What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. D.K. Matutu (Principal Magistrate) delivered on 12th June 2019 in Kilgoris PMCC ELC No. 96 of 2018, which had granted the Plaintiff a permanent injunction over Plot No. Olomismis Adjudication 186 and eviction of the Defendant. The Defendant appealed on 15 grounds, contending that Plot 186 was non-existent, that the Olomismis Group Ranch land had been subdivided with individual titles issued, that he held title to L.R. No. Trans-Mara/Olomismis/1072, and that the trial court improperly departed from the pleadings by finding fraud which was never pleaded or proved. The Respondent maintained that the trial judgment was sound. Guided by Selle v Associated Motor Boat Co. and Ol Pejeta Ranching Ltd, Kullow J reappraised the evidence. The Land Registrar's testimony, the green card, area list and mutation form showed parcel 1072 (4.067Ha) registered to the Appellant, while parcel 186 was a town plot (0.047Ha) belonging to Ole Morijoi Kesoi Ole Ketere. The Respondent's adjudication record did not indicate acreage or the initial owner. The court also held that a Court of Appeal decision of 2015 could not impeach a title issued in 2014, and that fraud, being neither pleaded nor proved, could not ground revocation of title under section 26 of the Land Registration Act. Allowing the appeal, the court set aside the trial judgment, dismissed the Respondent's suit, allowed the Appellant's counter-claim with a declaration of ownership, issued a permanent injunction against the Respondent, ordered vacatur within 120 days, and awarded costs of both the subordinate court and the appeal to the Appellant.

Key legal issues

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01

Ownership of the suit property and identity of the parcels

Holding

The Respondent failed to prove ownership of Plot No. 186; the parcels 186 and 1072 are separate and distinct, and the Appellant is the registered owner of L.R. No. Trans-Mara/Olomismis/1072.

Reasoning

The Land Registrar testified that Plot No. 186 is a town plot belonging to Keloi Ole Ketere while No. 1072 is farming land registered to the Appellant. The area list showed No. 186 measuring 0.047Ha belonging to Ole Morijoi Kesoi Ole Ketere and No. 1072 measuring 4.067Ha belonging to the Appellant. The Adjudication register produced by the Respondent did not indicate acreage, making his claim unproven.

p. 7
02

Fraud as a basis for revoking title

Holding

Fraud was never pleaded by the Respondent nor proved; the trial court misdirected itself in holding the Appellant's acquisition fraudulent.

Reasoning

A party is bound by their pleadings. The Respondent never sought to challenge the Appellant's title on grounds of fraud or misrepresentation, and no evidence of fraud was adduced. Section 26 of the Land Registration Act stipulates the grounds upon which a title may be challenged, none of which were established here.

p. 8
03

Effect of the Kisumu Court of Appeal decision relied on by the Respondent

Holding

The Court of Appeal decision in Civil Appeal No. 29 of 2014 could not be used to challenge the Appellant's title since the title deed had already been issued on 6/11/2014 before that decision.

Reasoning

The Respondent relied on a judgment in Civil Appeal No. 29 of 2014 delivered on 14/10/2015 by the Court of Appeal sitting in Kisumu. Since the Appellant's title deed had issued on 6/11/2014, the later decision could not form a basis to challenge the title. The map produced also showed parcel 1072 as distinct from parcel 186.

p. 7

Legal principles established

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  • A first appellate court must reappraise the evidence and draw its own conclusions while making due allowance for not having heard the witnesses.
  • A party is bound by their pleadings; a court cannot found liability on fraud where fraud was never pleaded or proved.
  • Registration of a person as proprietor of land vests absolute ownership, and a title can only be challenged on the grounds in section 26 of the Land Registration Act.
  • He who alleges must prove; the burden lies on the party asserting the facts.

Court orders

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  1. 1.The Judgment and Decree of the Learned Trial Magistrate dated 12th June, 2019 be and is hereby set aside and/or quashed and substituted with an order dismissing the Respondent's suit vide Kilgoris PMCC No. 96 of 2018
  2. 2.The Appellant's Counter-Claim dated 8th February, 2018 be and is hereby allowed and a declaration do issue that the appellant is the lawful owner of suit parcel L.R. No. Trans-mara/Olomismis/1072
  3. 3.An Order of Permanent Injunction restraining the Respondent, his servants, employees and/or agents from trespassing onto, dealing and interfering with the Appellant's use, occupation and possession
  4. 4.The Respondent directed to vacate the suit land L.R. No. Trans-mara/Olomismis/1072 within 120 days from the date of the judgment
  5. 5.Costs in the subordinate court and the Appeal to be borne by the Respondent

Authorities

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Legislation

  • Land Registration Actsections 24, 25, 26
  • Evidence Actsection 107(1)
  • Land (Group Representatives) Act, Chapter 287/297 Laws of Kenya (now repealed)referred to generally

Cases cited (8)

  • Margaret Njeri Wachira vs Eliud Waweru Njenga
    [2018] eKLR
  • Kinyanjui Kamau vs George Kamau Njoroge
    [2015] eKLR
  • Mary Ruguru Njoroge vs John Samuel Gachuma Mbugua & 4 Others
    [2014] eKLR
  • Murtaza Hassan & Another vs Ahmed Slad Kulmiye
    [2020] eKLR
  • Sunrays Rent-A-Car Safaris vs Contra Tours Ltd
    [2018] eKLR
  • Nemwel Momanyi vs James Finlay (K) Ltd
    [2017] eKLR
  • Ol Pejeta Ranching Limited vs David Wanjau Muhoro
    [2017] eKLR
  • Selle v Associated Motor Boat Co.
    [1968] EA 123
On appeal from
Principal Magistrate's Court, Kilgoris
PMCC ELC No. 96 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Environment and Land Court Act); appeal against judgment and decree in PMCC ELC No. 96 of 2018

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, "Kaipoi v Kukuu (Environment and Land Appeal 13 of 2021) [2022] KEELC 2478 (KLR)", Case Analysis (2022). Kilgoris PMCC ELC No. 96 of 2018 – Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2478/eng@2022-07-13

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