Ruto (Suing as legal representative of the estate of Kipruto Arap Maina) v Towett (Sued In Her Own Capacity As Administrator Of The Estate Of John Towett Mosonik) (Environment & Land Case 123 of 2017) [2024] KEELC 208 (KLR)
The bottom line
#The Kericho Environment and Land Court upheld a widow's land title, ordered the seller's son to vacate within 30 days, and awarded Ksh. 100,000 for trespass.
What this practically means
#Executive summary
#Key legal issues
#Whether title to the suit land was lawfully acquired and registered
The title passed from Kipruto Arap Maina to John Towett Mosonik and then by transmission to the Defendant (now Plaintiff); in the absence of proof of fraud, misrepresentation or corrupt scheme, the title is indefeasible
The court relied on the green card and title documents produced as exhibits, the 1976 sale agreements, the grant of letters of administration and the certificate of confirmation of grant. Applying sections 24, 25 and 26 of the Land Registration Act and the Munyu Maina case, it found the acquisition legal, formal and free from encumbrances since no contrary evidence was adduced by the undefended Plaintiff.
Whether the Plaintiff in the main suit was a trespasser
Having uprooted the Defendant's fence and encroached on the suit land without authorization, the Plaintiff (now Defendant) was a trespasser
The court found that the registered proprietor was entitled to quiet and peaceful possession and enjoyment of her ownership rights. The uncontroverted evidence was that after the husband's death the vendor's children uprooted the fence and steadily encroached until they occupied the whole land, conduct falling within the definitions of trespass in Black's Law Dictionary and the Trespass Act.
Whether general damages for trespass were payable
General damages of Ksh. 100,000/= were awarded despite absence of evidence of value, the court adopting the principle that there is no mathematical formula and the guiding factors are the circumstances of each case
The court acknowledged that no evidence of the state or value of the property before and after the trespass was adduced, but relied on Aluchio v Ngayo on the measure of damages for trespass and Willesden Investments on the absence of a scientific formula, and quantified general damages at Ksh. 100,000/=.
Whether mesne profits were payable
Mesne profits were declined for lack of evidentiary substantiation
Although mesne profits were pleaded, the Defendant (now Plaintiff) furnished no evidence of the period the Plaintiff had been on the suit property, the extent of encroachment or the loss suffered. Following Peter Mwangi Mbuthia & another v Samow Edin Osman, a claimant must place material before the court demonstrating how the amount claimed was computed.
Legal principles established
#- Where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title; the proprietor must prove the legality of the acquisition
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
- To impeach a title on grounds of fraud or misrepresentation, the owner must be proved to have been party to the acts of fraud
- A party claiming mesne profits must place material before the court demonstrating how the amount claimed was arrived at
Court orders
#- 1.A declaration that Land Parcel No. Kericho/Kyogong/810 measuring 0.8 hectares was lawfully acquired by the Defendant's (now Plaintiff's) husband and is thereby lawfully registered, thus the same belongs to the Defendant (now Plaintiff)
- 2.The Plaintiff (now Defendant) shall vacate from land parcel LR No. Kericho/Kyogong/810 within 30 days upon delivery of the judgment and, if he fails to so vacate, an order of eviction to issue against him/them
- 3.General damages of Ksh. 100,000/= awarded to the Defendant (now Plaintiff)
- 4.Costs of the Counter-Claim at a lower scale since the same was undefended
- 5.Interest on the general damages to be computed after 30 days from the date of delivery of the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the Defendant's Counterclaim relating to title to land (Land Parcel No. Kericho/Kyogong/810); no specific provision invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ruto (Suing as legal representative of the estate of Kipruto Arap Maina) v Towett (Sued In Her Own Capacity As Administrator Of The Estate Of John Towett Mosonik) (Environment & Land Case 123 of 2017) [2024] KEELC 208 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/208/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.