Kisoso v Kimamet & another (Suing as legal representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment & Land Case 267 of 2017) [2023] KEELC 64 (KLR)
The bottom line
#The Nakuru Environment and Land Court confirmed the buyer's land title but ordered her to give the occupying family 15 acres out of fairness.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired the suit property fraudulently
The defendants failed to prove fraud; the plaintiff's acquisition through Paul Chemirmir, following a valid charge and exercise of statutory power of sale, was established
The plaintiff is the registered owner, so Sections 24(a) and 26 of the Land Registration Act apply and her title is prima facie indefeasible. The burden lay on the defendants to prove fraud. Their case consisted of mere denials; they never joined the Kenya Commercial Bank to disprove the loan, default and auction, while the District Officer's minutes showed the 1st defendant admitting the loan and default. The court found no evidence remotely suggesting fraudulent procurement of the entries.
Whether the plaintiff is entitled to the orders sought in the plaint
Partially: the plaintiff is entitled to possession of the suit property less 15 acres allocated to the defendants; mesne profits refused for want of proof
Although the plaintiff proved her title, the court upheld the District Officer's alternative justice system determination that on humanitarian grounds the defendants, in occupation since 1969, could be given fifteen acres. The court therefore ordered subdivision and transfer of 15 acres to the administrator of the 1st defendant's estate, with the plaintiff taking the remainder. Mesne profits failed as special damages was not proved.
Whether the defendants are entitled to the relief in the counterclaim
Counterclaim dismissed: fraud and entitlement to rectification of the register were not proved
The 1st defendant's counterclaim alleged the charge, default and auction were fraudulent and sought rectification cancelling the plaintiff's registration and restoring his name. The defendants adduced no evidence of fraud, did not join the bank, and merely denied the plaintiff's claims. Their denials were insufficient to displace the register, so the counterclaim was dismissed with costs.
Legal principles established
#- Fraud must be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or illegality of acquisition
- Mesne profits are special damages which must be both pleaded and proved
Court orders
#- 1.The plaintiff's claim in the plaint dated 26/01/2006 is partially allowed
- 2.The defendant's claim in the further amended counterclaim dated 31/05/2019 is dismissed with costs
- 3.The plaintiff shall subdivide land parcel No. Lembus/Chemogoch/10 and transfer only 15 acres thereof into the name of the administrator of the estate of Kiporot ole Totona alias Singo Arap Totona (deceased)
- 4.The 15 acres shall include as much as practicable the land currently occupied by the defendants, but occupation of more than 15 acres shall not entitle them to the excess land
- 5.The defendants shall jointly and severally pay half of the costs of the main suit and the counterclaim to the plaintiff and bear the expenses of subdivision and transfer
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land dispute; not expressly cited in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoso v Kimamet & another (Suing as legal representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment & Land Case 267 of 2017) [2023] KEELC 64 (KLR)", Case Analysis (2023). Not stated in the judgment (plaint dated 26/01/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/64/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.