Keino v Maina & another (Sued as Personal Representatives of the Estate of Tapnyobii C. Maina - Deceased) & 2 others (Environment & Land Case 50 of 2019) [2024] KEELC 197 (KLR)
The bottom line
#A Kenyan court cancelled a 2006 land registration made without consent, restoring joint ownership — but partition must be sought from the Land Registrar, not the court.
What this practically means
#Executive summary
#Key legal issues
#Existence of tenancy in common over LR No. Kericho/Emkwen (Kapkures)/290
The 1993 title issued to the Plaintiff and the deceased 1st Defendant did not specify the nature of their rights, so by Section 91(2) of the Land Registration Act they are presumed to be tenants in common in equal shares.
The land was originally parcel 110 registered in 1991 to the Plaintiff, the deceased and Joseph Kipkemoi Korir; after sub-division, parcel 290 was issued in 1993 to the Plaintiff and the deceased. The Land Registrar (PW4) confirmed the common registration and that no transfer forms or Land Control Board consents supported the 2006 sole registration. The unencumbered documentary and oral evidence established co-tenancy presumed in equal shares.
Whether the 2006 rectification of the register making the deceased sole proprietor was lawful
The rectification was un-procedural, irregular and unlawful; the impugned entries were cancelled and the register ordered restored to its pre-2006 position.
PW4 testified the 23rd October 2006 transfer was effected without the other proprietor's consent and without supporting documents such as an executed transfer of undivided shares, Land Control Board consent or letter of consent. The Plaintiff was given no notice and no reasons were noted. The court found fraud/irregularity proved to the required standard and invoked its powers to nullify the entries.
Whether the court could order partition of the suit property
The court declined to order partition, holding that Section 94 of the Land Registration Act vests the power to partition land held in common in the Registrar, and that the established statutory dispute-resolution mechanism must be followed.
Section 94 provides that tenants in common apply to the Registrar for partition. Relying on Paul Muraya Kaguri v Simon Mbaria Muchunu, the court held that where a statute establishes a dispute resolution mechanism it must be followed. The Plaintiff's submission that the court's jurisdiction under the ELC Act was not ousted did not persuade the court to make the partition order itself.
Legal principles established
#- Allegations of fraud must be strictly proved, though not beyond reasonable doubt, but to a standard above a balance of probabilities
- Where a transfer to two or more persons does not specify the nature of their rights, they are presumed to hold as tenants in common in equal shares under Section 91(2) of the Land Registration Act
- Where a statute establishes a dispute resolution mechanism, that mechanism must be followed
Court orders
#- 1.A declaration that the registration of the deceased 1st Defendant as the sole proprietor of L.R. No. Kericho/Emkwen (Kapkures)/290 on 23rd October 2006 was illegal, null and void
- 2.Cancellation of the registration of the deceased 1st Defendant as sole proprietor within 30 days and restoration of the Register to the position it was before the purported rectification
- 3.The Plaintiff shall have the cost of the suit with interest at court rates
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act as read with Article 162(2)(b) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keino v Maina & another (Sued as Personal Representatives of the Estate of Tapnyobii C. Maina - Deceased) & 2 others (Environment & Land Case 50 of 2019) [2024] KEELC 197 (KLR)", Case Analysis (2024). Kericho ELC Case of 2019 (Plaint dated 1st October 2019, amended 23rd May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/197/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.