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ELCPartially AllowedELC Case No 13 of 2017 (consolidated with Case No 471 of 2017)· [2023] KEELC 137 (KLR)

Kurani Ene Moikai & 5 others v Mulinge Kilungu & 19 others

Environment and Land Court
19 January 2023
3,667 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Land Court ruled that people living on registered land in Kenya can keep it, because occupation rights override the title deed.

What this practically means

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Executive summary

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This Environment and Land Court judgment at Kajiado by M.N. Gicheru, J, determined two consolidated suits (No 13 of 2017 and No 471 of 2017) concerning LR Kajiado/Kaputiei-Central/466, formerly part of Ilmamen Group Ranch, registered to Kurani Ene Moikai in 1995 after her husband's death. The Plaintiffs sought eviction of twenty Defendants, mesne profits, interest and costs, asserting the Defendants were trespassers. The Defendants claimed they had purchased various portions from the deceased husband between the 1970s and 1990s and had occupied and developed the land for decades. The court found the Defendants in actual possession, but that most proved occupation of far less acreage than claimed. It held that occupation at the time of purchase created a constructive trust, rendering the writing requirement of section 3(4) of the Law of Contract Act immaterial, and that the Defendants' rights of actual occupation were overriding interests under section 30(g) of the repealed Registered Land Act and section 28(b) of the Land Registration Act, following the Supreme Court's decision in Isaack M'Inanga Kiebia. The sixth Defendant (Gideon Lenana Nakuo) was held not to be a bona fide purchaser. Judgment was entered for the Plaintiffs in Case No 471 of 2017 only to the extent of the proved acreages, to be curved out incorporating homesteads and graves; titles inconsistent with the Defendants' occupation were ordered cancelled. Both parties were partially successful and each was ordered to bear its own costs. The suit for eviction as pleaded substantially failed.

Key legal issues

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01

Validity of the sale agreements between the deceased and the Defendants

Holding

Some agreements valid, others not, but occupation at time of purchase created a constructive trust making the writing requirement immaterial

Reasoning

The court found some sale agreements valid and others not, many being unsigned, undated or lacking the deceased's signature. However, because all the Defendants in Case No 13 of 2017 occupied the land at the time of purchase, the court found that a constructive trust was created, making the requirement of a written agreement under section 3(4) of the Law of Contract Act immaterial.

p. 7
02

Whether the Defendants acquired overriding interests through possession

Holding

Yes - their rights of possession and any trust created by the deceased placing them in possession override the Plaintiffs' title

Reasoning

Relying on section 30(g) of the repealed Registered Land Act and section 28(b) of the Land Registration Act, the court held that the rights of persons in actual occupation override the register. A trust arose where the deceased put the Defendants in possession. The Supreme Court decision in Isaack M'Inanga Kiebia confirms customary trusts are overriding interests.

p. 7
03

Whether the sixth Defendant was a bona fide purchaser for value of LR No 4060

Holding

No, because his vendor had an inferior right to the Plaintiffs already in occupation

Reasoning

The court found Gideon Lenana Nakuo was not a bona fide purchaser because the person who sold him LR No 4060 (the first Plaintiff) herself held only an inferior right compared to the Defendants who were already in occupation. Since rights of actual occupation override the register, he could acquire no better title than his vendor's.

p. 7
04

Extent of each Defendant's proved occupation

Holding

Each Defendant proved occupation of far less acreage than claimed, generally one hectare to three acres each

Reasoning

The court made specific findings of fact on acreage, holding that the Defendants failed to prove occupation of the entire parcels they claimed. Due to contradictions, unsigned agreements and incomplete payments, it fixed each Defendant's proved holding at between one hectare and three acres, to be curved out incorporating homesteads and graves.

p. 6

Legal principles established

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  • Customary trusts and other trusts are overriding interests not required to be noted in the register
  • Rights of a person in possession or actual occupation of registered land override the register even where not noted, under Section 30(g) of the (repealed) Registered Land Act and Section 28(b) of the Land Registration Act
  • Where a purchaser occupies land at the time of purchase, a constructive trust arises which renders the writing requirement of section 3(4) of the Law of Contract Act immaterial

Court orders

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  1. 1.Judgment entered for the Plaintiffs in Case No 471 of 2017 as per the land sizes spelt out in paragraph 27 of the judgment, to be curved out of LR Kajiado/Kaputiei-Central/466 incorporating the Defendants' homesteads and burial areas
  2. 2.The title deeds issued to Kurani Ene Moikai, her sons, Gideon Lenana Nakuo and/or any other person to be cancelled if inconsistent with the Defendants' occupation
  3. 3.Both suits No 13 of 2017 and 471 of 2017 declared determined by the judgment
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Law of Contract ActSection 3(4)
  • Registered Land Act (Now Repealed)Section 30(g)
  • Land Registration Act (Act No 3 of 2012)Section 28(b)

Cases cited (1)

  • Isaack M'Inanga Kiebia v Isaya Ntongai M'Lintari and another
    Petition No 10 of 2015
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning title to and occupation of land); cases consolidated by court order dated 12/2/2018

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, "Kurani Ene Moikai & 5 others v Mulinge Kilungu & 19 others", Case Analysis (2023). ELC Case No 13 of 2017 (consolidated with Case No 471 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/137/eng@2023-01-19

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