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ELCPartially Allowedformerly Eldoret Environment and Land Case No. 112 of 2019· [2023] KEELC 442 (KLR)

Cheptabut v Kimisik & 2 others (Environment & Land Case 83 of 2021) [2023] KEELC 442 (KLR)

Environment and Land Court
31 January 2023
5,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered to a minor without a guardian, and hidden from succession proceedings, could have its title challenged and redirected to the rightful estate.

What this practically means

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Executive summary

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The plaintiff, administratrix of the Estate of Kiplelmet Randich, sued the widows of Kimisik Busienei (1st and 2nd Defendants) and the Attorney General for the County Land Registrar Nandi (3rd Defendant), seeking declarations of fraud, cancellation of the 2019 registration of Nandi/Kiptildil/28 in the 1st and 2nd Defendants' names, injunction, mesne profits and eviction. The parcel had first been registered to Kimisik Busienei in 1965 while he was a minor; the plaintiff obtained a Land Dispute Tribunal decree in Kapsabet PMCC LDT No. 53/2009 ordering equal division between two wives, but the defendants later obtained a confirmed grant in Succession Cause 11/2018 and were transmitted the parcel. The court found the green card opened in 1965 was irreconcilable with an adjudication form signed in 2008; one was falsified, and the first registration of a minor without a noted guardian breached section 23 of the Land Adjudication Act, making the title impeachable under section 26 of the Land Registration Act. Non-disclosure of the LDT decree in the succession proceedings was proved as fraud against the 1st and 2nd Defendants, as was the Registrar's failure to implement the registered decree. The tribunal had jurisdiction over occupation but not ownership, so only the occupation limb of the decree was enforceable, not being time-barred given the pleaded and proved fraud. The pleaded reliefs were untenable as land cannot vest in a deceased person and the court could not usurp the succession court; it instead declared the property belonged to Kiplelmet Randich, directed its inclusion in his Succession Cause 90/2006 and exclusion from the Estate of Kimisik Busienei, recognized the occupation of the plaintiff's sons, and partially lifted the inhibition. There were no orders as to costs.

Key legal issues

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01

Adjudication process and finality of the register

Holding

The green card opened in 1965 shows adjudication had been finalized by then; the adjudication form signed in 2008 was falsified or inaccurate, and the first registration of Kimisik Busienei while a minor was illegal for want of a noted guardian under section 23 of the Land Adjudication Act, rendering the title impeachable under section 26 of the Land Registration Act.

Reasoning

Adjudication commences on ministerial declaration under section 3 and terminates on compilation of the adjudication register under section 23. A register opened in 1965 could not coexist with an adjudication form completed in 2008. Either the green card or the adjudication form was falsified. Section 23 required a guardian of the minor to be noted; this was not done, so the registration was procured in breach of the statute and the resultant title is impeachable.

p. 7
02

Whether allegations of fraud were proved

Holding

Particulars (a) and (e) of fraud against the 1st and 2nd Defendants (non-disclosure of the LDT decree to the succession court) and particular (a) against the 3rd Defendant (failure to implement the registered decree) were proved on a balance of probabilities.

Reasoning

The succession cause of 2018 was commenced after the LDT decree of 2009 existed; the petitioners knew of it yet did not disclose it, which was fraudulent. The Land Registrar registered the decree as entry 4 in 2009 but failed to implement it before registering the confirmed grant in 2019; had the decree been implemented, half the parcel would not have formed part of Kimisik Busienei's estate.

p. 8
03

Powers of the Land Dispute Tribunal

Holding

The tribunal rightly determined occupation but lacked jurisdiction to order sub-division of title between the two wives, that being a question of ownership.

Reasoning

Following M'marete v Republic, tribunals have jurisdiction under section 3(a) over occupation disputes but not ownership. The decree's occupation finding was within jurisdiction and capable of enforcement; the ownership/sub-division limb was void for want of jurisdiction.

p. 8
04

Whether the LDT decree is capable of implementation

Holding

The occupation limb is capable of implementation as the suit, filed in 2019, was within the 12-year limitation period, and fraud being pleaded and partly proved, section 20 of the Limitation of Actions Act excepts the claim; the ownership limb is not capable of implementation.

Reasoning

A decree cannot be enforced after 12 years under section 4(4); the decree of 1 December 2009 was enforceable until 1 December 2021 and the suit was filed in 2019. Fraud having been pleaded and aspects proved, section 20 applies. The ownership limb fails for want of tribunal jurisdiction.

p. 9
05

Whether the plaintiff proved her case and appropriate reliefs

Holding

On a balance of probabilities the plaintiff proved her case, but the pleaded reliefs were untenable; the court substituted a declaration that the suit property belonged to Kiplelmet Randich and should be dealt with in his succession cause.

Reasoning

Property cannot be registered in the name of a deceased person; granting the pleaded reliefs would usurp the jurisdiction of the succession court. The cure lies in excluding the parcel from the Estate of Kimisik Busienei in Succession Cause 11/2018 and including it in the Estate of Kiplelmet Randich in Succession Cause 90/2006.

p. 9

Legal principles established

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  • A Land Dispute Tribunal has jurisdiction over disputes as to occupation but not ownership of land
  • First registration procured in breach of section 23 of the Land Adjudication Act is impeachable under section 26 of the Land Registration Act
  • Non-disclosure of a subsisting decree affecting land in succession proceedings amounts to fraudulent conduct
  • A court may substitute untenable prayers with appropriate reliefs where a party proves its case

Court orders

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  1. 1.Declaration that suit property Nandi/Kiptildil/28 was purchased by the late Kiplelmet Randich, belonged to him, should form part of the assets in Kapsabet Succession Cause No. 90 of 2006 in the Estate of Kiplelmet arap Randich, and ought to have been excluded from the assets in Succession Cause No. 11 of 2018 in the Estate of Kimisik Busienei
  2. 2.Recognition of the occupation of Daniel Singoei and Shadrack Kiplelmet in Nandi/Kiptildil/28 as decreed in LDT No. 53/2009, to be taken into consideration during distribution of the parcel in Succession Cause No. 90 of 2006
  3. 3.Partial lifting of the inhibition order registered on 15/10/2019 to the extent that the orders issued herein are registered and implemented; full lifting upon conclusion of Succession Cause No. 90 of 2006 and Succession Cause No. 11 of 2018
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Adjudication Act (Repealed)sections 3, 5, 13, 19, 23, 28
  • Land Registration Actsection 26
  • Limitation of Actions Actsections 4(4), 20
  • Land Disputes Tribunal Actsection 3(a)

Cases cited (4)

  • Julia Kaburia vs Kabera and 5 Others
    Civil Appeal 340/2002
  • M'marete vs Republic and 3 others
    Civil Appeal No. 259/2000 [2004] eKLR
  • Mae Properties Limited vs Joseph Kibe and another
    (2012) eKLR
  • Uasin Gishu Memorial Hospital Limited vs Moi Teaching and Referral Hospital Board and 2 Others
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title and registration of land

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, "Cheptabut v Kimisik & 2 others (Environment & Land Case 83 of 2021) [2023] KEELC 442 (KLR)", Case Analysis (2023). formerly Eldoret Environment and Land Case No. 112 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/442/eng@2023-01-31

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