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ELCPartially AllowedNot stated in the judgment as provided· [2022] KEELC 3379 (KLR)

Langat v Chepkwony and another; Chepkwony (Suing as the Administrator of the Estate of Kaplachan Maritim) v Maritim and 2 others (Counter Claim) (Environment & Land Case 8 of 2012) [2022] KEELC 3379 (KLR)

Environment and Land Court
26 May 2022
9,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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A Kericho court cancelled land titles that traced back to someone selling a dead man's property without proper succession papers, and dismissed the buyer's claim.

What this practically means

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Executive summary

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The Plaintiff, Sylvester Kipkurui Langat, sued for eviction of the Defendants from land parcel Kericho/Kabianga/3920, vesting orders, and a permanent injunction, having purchased the parcel from Joseph Kipkemoi Ruto in 2011 after Ruto acquired it from Elizabeth Chemutai Maritim. Rael Maritim, as administrator of the estate of Kaplachan Maritim, counterclaimed, seeking cancellation of all subdivisions flowing from the original parcel Kericho/Kabianga/98 on the ground that the transfers and subdivisions were intermeddling with the estate of a deceased person who died intestate in 1984. The court framed four issues: lawfulness of the Plaintiff's registration, entitlement to the prayers in the Plaint, entitlement to counterclaim relief, and costs. Holding that section 26(1) of the Land Registration Act protects title except where it was acquired through fraud or illegally, un-procedurally or through a corrupt scheme, the court found that Kaplachan died without succession proceedings ever being filed, yet parcel 98 was transferred to Elizabeth in 1990 and subdivided in 1992 without a grant of representation, contrary to sections 45 and 55 of the Law of Succession Act, rendering the registrations a nullity ab initio. The Plaintiff's suit was dismissed with costs. The counterclaim succeeded: the 1990 transfer and 1992 subdivisions were cancelled, title No Kericho/Kabianga/98 restored, the subsequent subdivisions into parcels 3920 and 3921 and resultant transfers cancelled, a permanent injunction issued against trespass, and costs of the counterclaim awarded to the plaintiff in the counterclaim. Judgment was delivered by M.C. Oundo, Environment and Land Judge, at Kericho on 26th May 2022 via Microsoft Teams.

Key legal issues

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01

Whether the Plaintiff's title to Kericho/Kabianga/3920 was lawfully acquired

Holding

The title was acquired illegally, un-procedurally and/or through a corrupt scheme and is liable to impeachment because the chain of title originated from an improper transfer of a deceased's estate without a grant of representation

Reasoning

Kaplachan Arap Maritim died on 24th October 1984 as the first registered proprietor of parcel 98. No succession proceedings were ever filed, yet the land was transferred to Elizabeth Chemutai Maritim on 24th September 1990 and subdivided in 1992, and later parcels passed to Joseph Ruto and the Plaintiff. Contrary to sections 45 and 55 of the Law of Succession Act, the estate was never distributed under a confirmed grant, so the registration was a nullity, and section 80(1) of the Land Registration Act empowered rectification.

p. 13
02

Whether the Plaintiff's title is protected as an indefeasible title under section 26(1) of the Land Registration Act

Holding

Section 26(1)(b) removes protection from a title obtained illegally, un-procedurally or through a corrupt scheme, even where the title holder did not contribute to the vitiating factors

Reasoning

The court emphasized that title is extremely protected but only within the two statutory exceptions. The import of section 26(1)(b) is to protect real title holders from being deprived of their titles by subsequent transactions, so the Plaintiff's registered title could not shield the defect in the root of title flowing from intermeddling with the deceased's estate.

p. 12
03

Whether the Plaintiff proved his claim for eviction and vesting orders

Holding

The Plaintiff failed to prove his case on a balance of probabilities and his suit was dismissed

Reasoning

There was no evidence of the sale agreements, no Land Control Board consents, no proof of payment of the substantial purchase price, and no evidence of compliance with section 3(3) of the Law of Contract Act. The court nonetheless rested its decision on the fundamental defect in the root of title and declined to belabour these additional lacunae.

p. 14

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but may be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where it was acquired illegally, un-procedurally or through a corrupt scheme
  • Allegations of fraud must be strictly proved to a standard higher than a mere balance of probabilities
  • No person may take possession of, dispose of or otherwise intermeddle with free property of a deceased person except under a grant of representation, and such dealings are void ab initio
  • Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of the acquisition beyond the instrument of title
  • An act that is void is a nullity, incurably bad, and needs no order of court to set it aside

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs
  2. 2.Cancellation of the transfer of title No Kericho/Kabianga/98 to the 1st defendant in the counterclaim, the issuance of title deed on 24th September 1990, and the subsequent subdivision into title Nos Kericho/Kabianga/2387, 2388, 2389 and 2442 on 13th May 1992, and title No Kericho/Kabianga/98 restored
  3. 3.Cancellation of the subdivision of title No Kericho/Kabianga/2387 into Nos Kericho/Kabianga/3920 and 3921, the subsequent transfers of No Kericho/Kabianga/3920 to the 2nd and then the 3rd defendant in the counterclaim, and any titles issued
  4. 4.The County Land Registrar Kericho County or the land registrar in charge of the area where the suit parcel is situate to be served with the orders for compliance
  5. 5.A permanent injunction restraining the defendants in the counterclaim from trespassing upon, remaining on, or otherwise interfering with any part of the original title No Kericho/Kabianga/98 or its use or possession by the plaintiff in the counterclaim and beneficiaries of the estate
  6. 6.Costs of the counterclaim awarded to the plaintiff in the counterclaim
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over title to and occupation of land (statutory provisions not expressly recited in the judgment)

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, "Langat v Chepkwony and another; Chepkwony (Suing as the Administrator of the Estate of Kaplachan Maritim) v Maritim and 2 others (Counter Claim) (Environment & Land Case 8 of 2012) [2022] KEELC 3379 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3379/eng@2022-05-26

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