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ELCPartially AllowedEnvironment & Land Case 384 of 2015· [2022] KEELC 15233 (KLR)

Kipkosgei Sirma Buigut & another (Suing as the Representatives of the Estate of Late Joel Kiprono Kipkoti) v Komen

Environment and Land Court of Kenya
7 December 2022
SKS. M. Kibunja
7,380 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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The court upheld a son's registered title to family land, ruling that a father who signed and handed over the transfer documents completed a valid gift.

What this practically means

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Executive summary

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The deceased plaintiff, Joel Kiprono Kipkoti, sued Charles Kibet Komen seeking a declaration that land parcel Mosop/Kapchorwa/799 belonged to him, mandatory injunctions compelling transfer, and a permanent injunction, alleging that the defendant duped him into signing documents ostensibly for a loan charge but which were used to transfer the land to himself. The defendant denied fraud, asserting he either purchased the land or received it as a gift, and counterclaimed for a declaration that his transactions were genuine. Kenya Commercial Bank, the 7th defendant, held a charge over the land securing a loan and supported the counterclaim. After the plaintiff's death, his administrators were substituted. The court framed four issues: whether the transfer was a gift or fraudulent; whether the charge was valid; entitlement to the prayers; and costs. Applying section 26(1) of the Land Registration Act and the strict standard of proof for fraud, the court found the plaintiff, a literate retired teacher who signed the documents before his wife and daughters, could not invoke non est factum and had failed to prove fraud. The court accepted that the plaintiff handed over the title deed and executed all transfer documents, completing a valid gift inter vivos. The KCB charge was held valid, the bank having conducted due diligence before any challenge was lodged. The main suit was dismissed; the defendant's counterclaim partially succeeded with a declaration that he obtained registration lawfully and regularly. Considering the family relationship between the parties, the court ordered each party to bear its own costs in both the main suit and counterclaim.

Key legal issues

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01

Whether the plaintiff proved fraud in the transfer of the suit land to the defendant

Holding

The plaintiff failed to prove fraud; the transfer was found to be a completed gift

Reasoning

The plaintiff, a retired teacher of 35 years, signed the transfer documents in the presence of his literate wife and daughters, none of whom reported the alleged fraud to police. The court held the non est factum defence unavailable to a literate person and found the plaintiff did not discharge the heightened burden of proving fraud under section 107 of the Evidence Act.

p. 9
02

Whether the suit land was a gift from the plaintiff to the defendant

Holding

Yes - the gift was complete upon execution and registration of the transfer

Reasoning

Relying on Halsbury's Laws and the Estate of M'Raiji Kithiano, the court held a gift of land must be effected by registered transfer. The plaintiff handed over the title deed, signed all necessary forms witnessed by family members, and the transfer was registered, completing the gift inter vivos.

p. 12
03

Whether the 7th defendant (KCB) created a valid charge over the suit land

Holding

The charge was valid; the bank was a bona fide chargee which conducted due diligence

Reasoning

All parties including the plaintiff confirmed the bank did nothing illegal. The bank carried out due diligence, found no encumbrances, and advanced the loan before the plaintiff lodged any challenge to the defendant's title. The court relied on section 80(2) of the Land Registration Act protecting innocent parties.

p. 12
04

Whether the defendant was entitled to the declaration sought in the counterclaim

Holding

The defendant partially succeeded and obtained the declaration that he obtained registration lawfully and regularly

Reasoning

Having found no fraud and a completed gift, the court held the defendant acquired the land legally and granted prayer (a) of the counterclaim, enabling the bank to exercise its statutory power of sale if the defendant defaulted.

p. 13

Legal principles established

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  • Allegations of fraud must be pleaded and strictly proved to a standard higher than the balance of probabilities, and the burden rests on the party alleging fraud
  • A gift of land inter vivos is complete and effective upon execution and registration of transfer; a gift resting merely in promise is incomplete and unenforceable
  • The defence of non est factum is unavailable to a literate person of full capacity who signs a document without informing himself of its meaning
  • A registered title is prima facie indefeasible and can only be challenged on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The plaintiff's claim against the defendant is dismissed for failure to prove it to the standard required
  2. 2.A declaration is issued that Charles Kibet Komen obtained registration of land parcel Mosop/Kapchorwa/799 lawfully and regularly
  3. 3.Each party is to bear its own costs in both the main suit and counterclaim

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 80(1) and 80(2)
  • Land ActSection 43(2)
  • Evidence ActSection 107
  • Civil Procedure ActSection 27(1)
  • Registration of Titles Act (repealed)Section 23(1)

Cases cited (18)

  • Samuel Odhiambo Oluthe & 20 Others vs Jubilee Jumbo Hardware & Another
    Kisumu ELC No 417 of 2015 (Formerly Civil Suit 67 of 2009)

    Court's power to rectify the register where registration was obtained by fraud or mistake

  • Geoffrey Mutie Mutunga v Wilson Mutunga Mbai
    [2020] eKLR

    Definition and narrow scope of the plea of non est factum

  • Saunders (Executive of the Estate of Rose Maude Gallie) v Anglia Building Society
    (1970) 3 ALL ER 961

    Non est factum available only to persons of full capacity; carelessness defeats the plea

  • Gallie v Lee
    (1969) 2 Ch 17

    Doctrine applies to those unable, through no fault of their own, to understand the purport of a document

  • Sood vs Sood & others
    [2002] All ER (D) 07 (Jan)

    Simple lack of understanding is insufficient for non est factum; fundamentally different effect must be shown

  • Foster v Mackinnon
    (1869) LR 4 CP 704

    Signature invalid where the mind of the signer did not accompany the signature

  • Josephine Mwikali Kikenye v Omar Abdalla Kombo & another
    [2018] eKLR

    Ingredients of the defence of non est factum and the onus on the party repudiating a signed document

  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR

    Fraud must be pleaded and strictly proved; higher standard than balance of probabilities

  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742

    Burden and higher standard of proof in allegations of fraud or forgery

  • Gladys Wanjiru Ngacha v Treresa Chepsaat & 4 others
    [2013] eKLR, Nyeri Civil Appeal No 94 of 2009

    Pleaded fraud must be supported by evidence

  • Mutsonga vs Nyati
    (1984) KLR 425

    Whether there is evidence to support fraud is a question of fact

  • Estate of M'Raiji Kithiano (Deceased)
    Meru HC Succ Cause No 419 of 2006

    A gift inter vivos of land must be complete; promises are unenforceable

  • Estate of the late Gedion Manthi Nzioka (deceased)
    (2015) eKLR

    Types of gifts and requirements for valid gifts inter vivos of land

  • Arthi Highway Developers Limited vs West End Butchery Limited and Others
    Civil Appeal No 246 of 2013

    Indefeasibility of title under sections 25 and 26 of the Land Registration Act

  • Registered Trustees Anglican Church of Kenya Mbeere Diocese vs David Waweru Njoroge
    [2007] eKLR

    A gift becomes complete and effective upon execution and registration of transfer

  • Harrison Wachira Wanjohi v Bethwel Mwangi Githinji & 4 others
    [2019] eKLR, Muranga ELC No 11 of 2018

    A chargee that conducted due diligence holds a valid charge absent evidence impeaching it

  • CBK vs Trust Bank Limited & 4 Others

    Higher standard of proof in fraud matters

  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another

    Higher standard of proof in fraud matters

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution / ELC Act); not expressly stated 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, "Kipkosgei Sirma Buigut & another (Suing as the Representatives of the Estate of Late Joel Kiprono Kipkoti) v Komen", Case Analysis (2022). Environment & Land Case 384 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15233/eng@2022-12-07

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