Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case (Eldoret) - LR No. Tulwet/Tulwet Block 5 (Kapserton)/6 suit, plaint dated 4th February 2015· [2022] KEELC 3531 (KLR)

Kemboi v Singoei & another (Environment & Land Case 35 of 2015) [2022] KEELC 3531 (KLR)

Environment and Land Court
25 May 2022
7,189 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed both sides' claims: the owner's eviction suit failed, but so did the buyers' fraud and ownership counterclaim.

What this practically means

#

Executive summary

#
The Plaintiff, registered proprietor of LR No. Tulwet/Tulwet Block 5 (Kapserton)/6 measuring 0.394 hectares, sued the Defendants for a permanent injunction, eviction and general damages for trespass, alleging they forcefully entered the land in early 2015. The Defendants opposed the claim and counterclaimed, seeking a declaration that the Plaintiff's title was null and void, a declaration and registration of half of the suit property in the 1st Defendant's name, a permanent injunction against the Plaintiff, and a vesting order. They averred that the 1st Defendant bought 0.5 acres from the Plaintiff's mother, Martha Cheboo, under a sale agreement dated 13th September 2004, and that the Plaintiff fraudulently registered himself as proprietor in 2006 after threatening and coercing his mother. Nine defence witnesses, including the Plaintiff's mother and brother, supported the defence. The court framed three issues: trespass, fraud in the counterclaim, and costs. It held that although section 26(1) of the Land Registration Act confers prima facie indefeasibility, a challenged proprietor must prove the legality of acquisition; however, the Defendants adduced no evidence of fraud, which must be strictly proved. The court found the Defendants were lawfully placed on their portion in 2004 and were not trespassers, so the Plaintiff's suit failed. The counterclaim also failed: the elders' agreement of 11th November 2003 left Martha only two (2) points of land, so she could not validly sell 0.5 acres; the Defendants could not approbate and reprobate the agreement; the sale agreement lacked a description of the land, rendering it incurably defective; and no Land Control Board consent was obtained within six months, voiding it under section 6 of the Land Control Act. The court declined to determine the trust claim since it was not pleaded. Both the suit and counterclaim were dismissed with each side bearing their own costs.

Key legal issues

#
01

Whether the Defendants were trespassers on the suit land

Holding

The Plaintiff failed to prove trespass; the Defendants were lawfully placed on the portion in 2004 by the Plaintiff's mother and were entitled to remain in possession

Reasoning

Although the Plaintiff was the registered proprietor since September 2006, the evidence of the defence, including the Plaintiff's own mother and brother, showed the family agreed in 2003 before elders to share the land. The Plaintiff knew of his mother's sale to the 1st Defendant and only objected when filing suit in 2015. The court found the Defendants were lawfully placed on the portion and could remain.

p. 9
02

Whether the Plaintiff's title was fraudulently procured so as to defeat indefeasibility under section 26(1) of the Land Registration Act

Holding

No; fraud was not proved to the required standard and the title remained prima facie valid

Reasoning

Section 26(1) of the Land Registration Act makes a registered proprietor's title absolute and indefeasible except on grounds of fraud or misrepresentation, or illegal, unprocedural or corrupt acquisition. The Defendants alleged fraud, coercion and threats but called no evidence to prove them. The mother's claim of assault could not substitute for proof of fraud, which must be strictly proved and cannot be inferred from facts.

p. 8
03

The validity of the agreement before the Elders of 11th November 2003 and the sale agreement of 13th September 2004 relied on by the Defendants

Holding

Under the elders' agreement Martha Cheboo was entitled to only two (2) points of the land, so she could not sell 0.5 acres; the sale agreement was void for lacking land description and Land Control Board consent

Reasoning

The Defendants relied on the elders' agreement to establish Martha's ownership but ignored its terms limiting her to two points - conduct the court held amounted to approbating and reprobating. The sale agreement lacked registration details of the subject land, a fundamental ingredient rendering it void, and no Land Control Board consent was obtained within six months, making it void under section 6 of the Land Control Act.

p. 11
04

Whether the Defendants' trust claim could be sustained

Holding

No determination was made because the pleadings contained no averment or prayer based on trust

Reasoning

Although the Defendants submitted that the Plaintiff held the land on an implied or constructive trust for his mother and themselves, neither the plaint nor the defence/counterclaim pleaded trust. Parties are bound by their pleadings, and submissions are not a legal medium through which a claim is commenced. DW3 was a witness and not a party, so the court declined to make any determination on the trust claim.

p. 12

Legal principles established

#
  • When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership; the proprietor must prove the legality of the acquisition
  • Allegations of fraud must be strictly proved; the standard is higher than a mere balance of probabilities
  • A sale agreement that does not describe the parcel of land being sold is incurably defective and void
  • A transaction over agricultural land requiring Land Control Board consent becomes void if consent is not obtained within six months
  • A party cannot approbate and reprobate - rely on an agreement where it favours them and disregard its adverse contents
  • Parties are bound by their pleadings; a claim based on trust cannot be introduced through submissions alone
  • The court has discretion to order each party to bear their own costs notwithstanding section 27 of the Civil Procedure Act

Court orders

#
  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Defendants' counterclaim is dismissed
  3. 3.Each side to bear their own costs in the plaintiff's suit
  4. 4.Each party to bear their own costs in the defendants' counterclaim

Authorities

#

Legislation

  • Land Registration Actsection 26(1); section 80(1)
  • Registered Land Act (repealed)sections 26, 27, 28, 30(g), 126(1)
  • Land Control Actsection 6
  • Civil Procedure Actsection 27
  • Constitution of KenyaArticles 159(2)(a), 159(2)(b), 159(2)(g)
  • Limitation of Actions Actreferred to in quoted passage

Cases cited (21)

  • Kibiro Wagoro Maki-jmi V Francis Nduati Macharia & Another
    [2018] eKLR
  • Mongeri Mirieri Nyanganyeria V District Land Registrar Thika & 2 Others
    [2018] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Samuel Odhiambo Oludhe & 2 others V Jubilee Jumbo Hardware Limited & another
    (2018) eKLR
  • Chemei Investments Limited Vs The Attorney General & others
    Nairobi Petition No. 94 of 2005
  • Milan Kumar Shah & 2 Others -vs- City Council of Nairobi & Another
  • Macharia Mwangi Maina & 87 others V Davidson Mwangi Kagiri
    (2014) eKLR
  • Mwangi & another -vs- Mwangi
    (1986) KLR 328
  • Chase International Investment Corporation and Another vs. Laxman Keshra and Others
    [1978] KLR 143; [1976-80] 1 KLR 89
  • Willy Kimutai Kitilit Vs Michael Kibet
    [2015] eKLR
  • Sammy Likunyi Adiema and Charles Shamwati Shisikani
    Kisumu Court of Appeal Civil Appeal No.3 of 2014
  • Alton Homes Limited & Another V Davis Nathan Chelogoi & 2 Others
    [2018] eKLR
  • Lukutsa v Sebenzia Achitsa Amuti (suing as the Personal Representative of the Estate of Abraham Mukanzi Alias Ibrahim Mukanzi)
    (civil Appeal 43 Of 2019) [2021] KECA 241 (KLR) (3 December 2021)
  • Koinange & 13 Others V. Charles Karuga Koinange
    1986 KLR
  • Ratilal Patel Makanji
    (1957) EA 314
  • Loise Wanja Rugendo & Another V Festus Mbaka Murango & 3 others
    [2020] eKLR
  • R. G. Patel v. Lalji Makanji
  • Republic V Institute Of Certified Public Secretaries of Kenya Ex-parte Mundia Njeru Geteria
    [2010] eKLR
  • Evans V Bartlam
    (1937) 2 ALL ER 649
  • Banque De Moscou V Kindersley
    (1950) 2 ALL ER 549
  • Joseph Ngareh Kanyeria v Sarah Wandia Njogu (sued In Her Capacity as the Legal Representative of the Estate of Njogu Kibaka (deceased)
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (suit over ownership, trespass and title to land)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kemboi v Singoei & another (Environment & Land Case 35 of 2015) [2022] KEELC 3531 (KLR)", Case Analysis (2022). ELC Case (Eldoret) - LR No. Tulwet/Tulwet Block 5 (Kapserton)/6 suit, plaint dated 4th February 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3531/eng@2022-05-25

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