Bunyi v Lepaso & 3 others (Environment & Land Case 575 of 2017) [2022] KEELC 3099 (KLR)
The bottom line
#A registered landowner won in Kajiado because the court protects title, but her unproven second parcel claim failed—documents decide land cases.
What this practically means
#Executive summary
#Key legal issues
#Existence of LR Kajiado/Kitengela/1957
The parcel no longer exists as it was partitioned into LR 12922 and 12923 with Land Control Board consent
The court found the subdivision was authorised by the Purko Land Control Board consent and was implemented on 23/12/03, giving rise to parcels 12922 and 12923. The defendants could therefore not claim to occupy a parcel that no longer exists on the register.
Impact of pending ELC No 579 of 2017
The defendants failed to prove any impact because they did not plead or file the pleadings of that case
Order 4 rule 1(1)(f) of the Civil Procedure Rules requires a plaint averment on other pending or previous proceedings. The defendants, who relied on the parallel suit, bore the duty to disclose it and seek consolidation; they did neither, so the court gave it no effect.
Decree in Kajiado SRM's Case No 69 of 2009
The decree was unknown and unproved; the defendants bore the burden of pleading and disclosing it
The defendants relied on the adoption of a Provincial Land Disputes Tribunal decision in Kajiado SRM's Case No 69 of 2009 as conclusively determining the matter. Having failed to plead or exhibit the decree, they did not discharge the evidential burden, and the counterclaim on that basis failed.
Ownership of LR 33573
Not proved; no title deed for that parcel was filed and the nine rather than eight portions from the subdivision were unexplained
Only the title deed for LR 33576 was produced. Further, the Land Control Board consent of 14 July 2004 authorised subdivision of LR 12922 into eight portions, yet nine emerged (33568-33576); this discrepancy, and the plaintiff's title to 33573, were unexplained, so ownership of 33573 was not established.
Plaintiff's case on LR 33576
Proved on a balance of probabilities; valid sale, registration, consideration, procedure and possession established
The plaintiff demonstrated a valid sale agreement between her husband and the first defendant, payment of consideration, registration of a joint title, compliance with transfer and subdivision procedures, and possession by fencing. Sections 24 and 25 of the Land Registration Act vested indefeasible rights in the registered owner, and the defendants adduced no overriding interest.
Legal principles established
#- Sections 24 and 25 of the Land Registration Act confer on a registered owner rights and privileges of ownership, which cannot be defeated absent evidence of an overriding interest
- A defendant relying on a pending suit or a tribunal decree must plead and prove it; the burden of proof lies on the party asserting the fact
Court orders
#- 1.Judgment entered for the plaintiff against the defendants as prayed in paragraph 7(a), (b) and (e) of the plaint dated October 22, 2015 in respect of only LR 33576
- 2.The defendants' counterclaim dismissed with costs
- 3.This judgment to apply to civil case no 574 of 2017 between Samuel Ngigi Gituere and Boniface Karogo, mutatis mutandis
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (article 162(2)(b) of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bunyi v Lepaso & 3 others (Environment & Land Case 575 of 2017) [2022] KEELC 3099 (KLR)", Case Analysis (2022). ELC No. 575 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3099/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.