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ELCPartially AllowedNot stated in extract (ELC, Nakuru)· [2022] KEELC 3941 (KLR)

Rorogu & 3 others (Suing as administrators of the Estate of Joseph Kiplele Rorogu - Deceased) v Chesang & 5 others (Land Case 111 of 2015) [2022] KEELC 3941 (KLR)

Environment and Land Court
11 August 2022
8,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled six land titles that holders could not prove were legally acquired, restoring a 50-acre plot to a deceased man's family.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Joseph Kiplele Rorogu (deceased), sued six defendants seeking a declaration that the deceased was the lawful proprietor of LR No Nakuru Tinet/Sotik settlement scheme/2220 (approximately 50 acres), cancellation of titles Nos 3274, 3276, 3277, 3278, 3279 and 3280 allegedly carved illegally out of plot 2220, and a permanent injunction. The 3rd, 5th and 6th defendants and Wilson Kipkogei Kipketer Boit counterclaimed, seeking nullification of an Olenguruone Land Disputes Tribunal award (claim No 148 of 2006, adopted in Molo SPMCC LDT No 5 of 2007) that had been made in the deceased's favour, an injunction and damages for trespass. The court found, on the strength of a land allocation card and comparison of the 1998 and 2005 registry index maps, that the deceased was validly allocated plot 2220 and that the defendants' plots were carved out of it. The defendants produced no allotment letters, area lists or other proof of the legality of their acquisitions; applying section 26 of the Land Registration Act and Munyu Maina v Hiram Gathiha Maina, their titles were held to have been acquired illegally, unprocedurally or through a corrupt scheme and were cancelled. On the counterclaim, the court held that the counterclaimants (save the 6th defendant) had participated in the tribunal proceedings, never raised jurisdiction there, and failed to appeal or seek judicial review under the Land Disputes Tribunals Act; they could not re-litigate the tribunal decision by way of counterclaim 13 years later. Judgment was entered for the plaintiffs, the counterclaim was dismissed, the six titles were cancelled with directions for rectification of the RIM and register, plot 2220 was vested in the plaintiffs, a permanent injunction issued, and the defendants/counterclaimants were ordered to bear the costs.

Key legal issues

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01

Whether the deceased was the allottee of plot No 2220

Holding

The court found the deceased was allocated plot No 2220 measuring approximately 50 acres, evidenced by land allocation card No 16897, and the defendants failed to prove the allocation was ever revoked.

Reasoning

The plaintiffs produced a land allocation card bearing the stamps of the district commissioner and provincial forest officer. The defence witness admitted there was no document showing revocation of allotment cards and that the defendants had no allotment letters, minutes or evidence of clan registration. The tribunal had also recognised the allocation card. No credible evidence of discontinuance of the card system was adduced.

p. 10
02

Whether plot 2220 was subdivided to create the defendants' plots

Holding

The court found the defendants' plots 3274, 3276, 3277, 3278, 3279 and 3280 were carved out of plot 2220, as shown by comparison of the 1998 and 2005 registry index maps.

Reasoning

The plaintiffs' 1998 map showed plot 2220 as a large parcel with no defendants' plots; the defendants' 2005 map showed plot 2220 greatly reduced with the defendants' plots created within its former boundaries. The continued existence of plot 2220 on the current RIM despite subdivision pointed to irregularity, since a subdivided parcel's register should ordinarily be closed.

p. 10
03

Whether the defendants' titles should be cancelled for fraud and/or illegality

Holding

Yes. Having failed to explain their acquisition of titles or produce any allocation documents, the titles were held to have been acquired illegally, unprocedurally or through a corrupt scheme and were subject to cancellation under section 26 of the Land Registration Act.

Reasoning

Section 26 permits challenge where title is acquired illegally, unprocedurally or through a corrupt scheme. The defendants produced no allotment letters or area lists and could not explain the reduction of plot 2220 on the RIM. Invoking Munyu Maina v Hiram Gathiha Maina, the court held that waving a title deed is insufficient where the root of title is challenged; the defendants bore the burden of proving legality of acquisition and failed.

p. 12
04

Whether the defendants could challenge the tribunal decision for want of jurisdiction in this suit

Holding

No. The defendants (save the 6th) participated in the tribunal proceedings, never raised jurisdiction there, and failed to appeal or seek judicial review; they cannot re-litigate the tribunal decision by counterclaim 13 years later.

Reasoning

The tribunal record showed the defendants attended and were represented. Relying on Owners and Masters of the Motor Vessel Joey, a party who did not question jurisdiction after the matter was determined cannot raise it later. The Speaker of the National Assembly v Karume principle required adherence to the prescribed appeal mechanism under the Land Disputes Tribunals Act. Kefa Were v Benedict Chepkering was applied as persuasive.

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge on the ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme (section 26, Land Registration Act).
  • 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 how he acquired the title.
  • A party who fails to question the jurisdiction of a tribunal or court at first instance may not raise the issue after the matter has been heard and determined on the merits.
  • Where a clear procedure for the redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.

Court orders

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  1. 1.A declaration that the estate of Joseph Kiplele Rorogu is the lawful proprietor of LR No Nakuru Tinet/Sotik settlement scheme/2220 measuring approximately 50 acres
  2. 2.A declaration that titles Nos 3274, 3276, 3277, 3278, 3279 and 3280 were illegally carved out of or superimposed on title No 2220
  3. 3.Cancellation of titles Nos 3274, 3276, 3277, 3278, 3279 and 3280, with the county surveyor and land registrar Nakuru directed to rectify the registry index map and land register to reinstate the boundaries of plot 2220
  4. 4.An order vesting the interest in LR No Nakuru Tinet/Sotik settlement scheme 2220, as reconstituted, in the plaintiffs as administrators of the estate of Joseph Kiplele Rorogu (deceased)
  5. 5.A permanent injunction restraining the defendants, their agents, servants or any person claiming under them from interfering with LR No Nakuru Tinet/Sotik settlement scheme 2220
  6. 6.The defendants in the main suit and the plaintiffs in the counterclaim to bear the costs of the suit and the counterclaim

Authorities

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Legislation

  • Land Disputes Tribunal Act (Cap 303, repealed)sections 3, 3(4), 8
  • Evidence Actsection 107(1)
  • Registered Land Act (repealed)sections 25(2), 27, 28
  • Land Registration Actsections 22(2), 24(b), 25(1), 26(1) and (2), 80
  • Land Adjudication Actnot specified

Cases cited (16)

  • Elizabeth Nyambura Njuguna (suing as the legal representative of Njuguna Mbogo) & 3 others v EK Banks Ltd & 3 others
  • Owners of Motor Vessel Lillian S v Caltex Oil Kenya Ltd
    1989 eKLR
  • Primrose Management Ltd v Chairman of The Business Premises Rent Tribunal Nairobi & another
    2015 eKLR
  • Kefa Were v Benedict Chepkering
    2018 eKLR
  • Nakuru Automobile Warehouse Ltd v Lawrence Maina Mwangi & another
    ELC No 204 of 2014
  • Stephen Mburu & 4 others v Comat Merchants & another
    2012 eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    2000 eKLR
  • Kinyanjui Kamau v George Kamau
    2015 eKLR
  • Peris Wanjiku Mukuru suing as the legal representative of the Estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia
    2020 eKLR
  • George Christopher Odondo v Francis Tobias Akello & another
    2020 eKLR
  • John Mwangi Waithaka v Jackson K Cherop & another
    2014 eKLR
  • Jamin Kiombe Lidodo v Emily Jerono Kiombe & anor
    2013 eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Shadrack Kuria Kimani v Stephen Gitau Nganga & another
    2017 eKLR
  • Owners and Masters of the Motor Vessel Joey v Owners and Masters of the Motor Tugs Barbara and Steve “B”
    2008 1 EA 367
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land title and disputes (Environment and Land Court Act); article 162(2)(b) constitutional jurisdiction over land (not expressly quoted in extract)

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, "Rorogu & 3 others (Suing as administrators of the Estate of Joseph Kiplele Rorogu - Deceased) v Chesang & 5 others (Land Case 111 of 2015) [2022] KEELC 3941 (KLR)", Case Analysis (2022). Not stated in extract (ELC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3941/eng@2022-08-11

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