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ELCPartially AllowedNot stated in judgment as provided· [2022] KEELC 3253 (KLR)

Lelei v Melly & 3 others (Civil Suit 67 of 2016) [2022] KEELC 3253 (KLR)

Environment and Land Court
8 June 2022
SKS.M. Kibunja
4,172 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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An Eldoret court confirmed a buyer with proper paperwork owns the land, evicted the occupants, cancelled a forged title, and awarded Kshs 200,000 for trespass.

What this practically means

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Executive summary

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The plaintiff, John Kipkoech Lelei, sued the 1st and 2nd Defendants for eviction, permanent injunction, general damages for trespass and a declaration of ownership over Eldoret Municipality Block 14/439, alleging they trespassed in March 2016 and that the 1st Defendant fraudulently obtained a lease over the land in 2003 with the connivance of the 3rd Defendant, the Land Registrar. The 1st and 2nd Defendants asserted the plaintiff's title was fraudulently procured and sought dismissal and cancellation of his Certificate of Lease; their case was marked closed after they failed to attend the defence hearing. The plaintiff testified to searches, a sale agreement, an executed transfer from the registered owner Elisha Kare Busienei, payment of statutory dues and registration on 10th August 2007. The County Land Registrar corroborated the register and demonstrated that the 1st Defendant's 2003 Certificate of Lease had no registry support and bore an issue date falling on a Saturday when the registry was closed. The court framed five issues and held that the plaintiff's title was procedurally acquired, valid and indefeasible; that the 1st and 2nd Defendants were trespassers from 2016; and that trespass being actionable per se, general damages of Kshs. 200,000 were warranted despite unproved quantum. The claim against the 3rd and 4th Defendants failed because fraud was neither pleaded nor proved against them. The court declared the plaintiff the rightful owner, ordered vacant possession within 90 days with eviction in default, permanent restraint, cancellation of the forged certificate, damages, and costs against the 1st and 2nd Defendants, and dismissed the claim against the 3rd and 4th Defendants with costs.

Key legal issues

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01

Lawful proprietorship of Eldoret Municipality Block 14/439

Holding

The Plaintiff is the lawful, absolute and indefeasible registered proprietor, having acquired the title procedurally with the registered owner's executed transfer, consents, payments and registration corroborated by the Land Registrar.

Reasoning

The court evaluated the plaintiff's evidence of searches, the sale agreement, the executed transfer from the registered owner Elisha Kare Busienei, payment of rent, rates and stamp duty, and issuance of the Certificate of Lease. DW1, the County Land Registrar, corroborated the register entries and confirmed the plaintiff's registration on 10th August 2007, establishing a regular and lawful acquisition process.

p. 6
02

Trespass and damages

Holding

The 1st and 2nd Defendants are trespassers from 2016; trespass is actionable per se and general damages of Kshs. 200,000 awarded.

Reasoning

Having found the plaintiff the rightful owner, the court held the defendants' 2016 occupation was trespass denying the plaintiff use and enjoyment. Although no quantum of loss was proved, trespass being actionable per se, the court awarded Kshs. 200,000, doubling the Kshs. 100,000 in Duncan Nderitu Ndegwa to account for nearly a decade of inflation.

p. 7
03

Fraud against the 3rd and 4th Defendants

Holding

Claim against the 3rd and 4th Defendants fails as fraud was neither pleaded nor proved against them.

Reasoning

The plaintiff pleaded fraud particulars only against the 1st Defendant and raised no concerns about the 3rd Defendant's handling of the property. Applying the rule that fraud must be distinctly pleaded and proved, the court found the case against the Land Registrar and 4th Defendant could not stand and dismissed it with costs.

p. 7
04

Validity of the 1st Defendant's Certificate of Lease

Holding

The 1st Defendant's Certificate of Lease dated 15th March 2003 is a forgery with no supporting registry records.

Reasoning

DW1 testified that the parcel register contains no documents supporting the 1st Defendant's certificate, that the date of issue fell on a Saturday when the registry was closed, that the Memorandum of Surrender is not held at the registry, and that the purported signatory B.A. Choka was never Land Registrar Uasin Gishu and could not have signed in 2001. The court directed cancellation of the forged certificate.

p. 7

Legal principles established

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  • A title document is not an end in itself; the process of acquisition must be shown to be proper for the title to be upheld.
  • Trespass to land is actionable per se and general damages may be awarded without proof of actual loss.
  • Fraud must be specifically pleaded and distinctly proved; it cannot be inferred from facts.

Court orders

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  1. 1.Declaration that John Kipkoech Lelei is the rightful proprietor/owner of Eldoret Municipality Block 14/439
  2. 2.1st and 2nd Defendants declared trespassers and directed to give vacant possession within 90 days, in default eviction order to issue
  3. 3.Upon giving vacant possession or eviction, 1st and 2nd Defendants permanently restrained from interfering with Plaintiff's use of the land
  4. 4.Land Registrar, Uasin Gishu to initiate steps to call for and cancel the forged Certificate of Lease issued to the 1st Defendant on 15th March 2003
  5. 5.General damages of Kshs. 200,000 for trespass payable by the 1st and 2nd Defendants jointly and/or severally
  6. 6.1st and 2nd Defendants to pay the Plaintiff's costs of the suit
  7. 7.Plaintiff's claim against the 3rd and 4th Defendants dismissed with costs

Authorities

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Legislation

  • Registered Land Act Chapter 300 (repealed)section 36
  • Registered Land Act Chapter 300 (repealed)section 38(1)
  • Law of Contract Actsection 3(3)
  • Land Registration Act No. 3 of 2012sections 24, 25, 26(1), 27, 28, 38
  • Evidence Act Chapter 80sections 83, 86(1)(a) and (2)
  • Environment and Land Court Act No. 19 of 2011section 13(7)
  • Civil Procedure Act Chapter 21section 27
  • Constitution of KenyaArticle 40

Cases cited (17)

  • Jaj Super Power Cash And Carry Ltd v Nairobi City Council & Others
    CA Civil Appeal No. 11 of 2002 (NRB) (unreported)
  • Jaber Mohsen Ali & Anorther v Priscillah Boit & Anorther
    (2014) eKLR
  • Joel Kipchirchir Kitur v David Kimutai Langat And Anr
    [2006] eKLR
  • Gladys Wanjiru Kirubi v John Kangethe Kibe
    [2005] eKLR
  • Scott v Brown
    (1892)
  • Walsh v Trebilcock
    (1894)
  • Kimutai Tunoi Leornard v Samwel Cheboi
    (2017) eKLR
  • Funzi Island Development Limited & 2 Others v Count Council Of Kwale & 2 Others
    (2014) eKLR
  • Republic v Land Registrar Kilifi & Another Ex Parte Daniel Ricci
    (2013) eKLR
  • Henry Muthee Kathurima v Commissioner Of Lands & Another
    (2015) eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar Another
    (2000) eKLR
  • Ndolo v Ndolo
    (2008) 1 KLR (G&F) 742
  • Kinyanjui Kamau v George Kamau Njoroge
    (2015) eKLR
  • Daudi Kiptugen v Commissioner Of Lands & 4 Others
    [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & Another
    [2013] eKLR
  • Demutila Nanyama Pururmu v Salim Mohamed Salim
    [2021] eKLR
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act No. 19 of 2011

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, "Lelei v Melly & 3 others (Civil Suit 67 of 2016) [2022] KEELC 3253 (KLR)", Case Analysis (2022). Not stated in judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3253/eng@2022-06-08

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