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ELCPartially AllowedEldama Ravine SRMCC Case No. 60 of 2015 (Appeal)· [2024] KEELC 260 (KLR)

Kiprop & 2 others v Korir & 2 others (Environment and Land Appeal E018 of 2022) [2024] KEELC 260 (KLR)

Environment and Land Court
25 January 2024
5,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld registered land titles, ruling that later allotment letters cannot defeat them and fraud must be specifically pleaded and proved.

What this practically means

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Executive summary

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The plaintiffs sued the defendants in Eldama Ravine SRMCC No. 60 of 2015 seeking eviction, mesne profits and injunctions over Mogotio L.R No. Block 1/48 and 1/51, having been allocated the parcels by the Commissioner of Lands in 1988 and issued certificates of lease. The defendants denied the claim, alleging fraudulent and unprocedural registration, and the 2nd and 3rd defendants counterclaimed for declarations of ownership and cancellation of the plaintiffs' leases. The trial magistrate dismissed the plaintiffs' suit, holding the suit properties were trust land whose allocation required the consent of the defunct County Councils of Baringo and Koibatek, and allowed the counterclaims. On appeal to the Environment and Land Court at Iten, the appellate court re-evaluated the evidence under the Selle principles. It found no evidence proving the pleaded fraud, and held that the defendants, having alleged illegality and want of due process, were obliged under Order 2 Rule 4 to plead particulars, which the 2nd and 3rd defendants never did. The protest letters from the County Council of Koibatek did not specifically refer to the plaintiffs' parcels and did not prove absence of consent. The certificates of lease, protected under Sections 27, 28 and 143 of the repealed Registered Land Act, could only be challenged on statutory grounds. The evidence showed the defendants were allotted the plots only in 2008, long after the plaintiffs, whose registered interests therefore ranked higher; a letter of allotment cannot defeat a registered title. Allowing the appeal, the court reversed the trial court's dismissal of the plaintiffs' suit and the allowance of the counterclaims.

Key legal issues

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01

Whether the plaintiffs' certificates of lease were obtained illegally for want of consent of the defunct county councils

Holding

The defendants failed to prove that the allocations to the plaintiffs were made without the consent or concurrence of the County Councils; protest letters by the County Council of Koibatek did not specifically refer to the plaintiffs' parcels

Reasoning

The 1st respondent produced evidence of general protest letters by the County Council of Koibatek against allocations by the Commissioner of Lands in Mogotio Township, but in cross-examination acknowledged the letters did not specifically refer to the plaintiffs' parcels. The burden of proving the asserted illegality rested on the party alleging it, and that burden was not discharged.

p. 8
02

Whether fraud and want of due process were properly pleaded and proved

Holding

The 2nd and 3rd defendants gave no particulars of fraud or want of due process; the 1st defendant's pleaded fraud was not proved; evidence of unpleaded illegality could not be relied upon

Reasoning

Order 2 Rule 4 of the Civil Procedure Rules requires matters such as fraud, illegality and want of due process to be specifically pleaded. The 2nd and 3rd defendants merely alleged unlawfulness without particulars; attempts to prove unpleaded matters amount to propping up a case. The 1st defendant's particularised fraud allegations were not supported by any evidence.

p. 8
03

Priority between the plaintiffs' certificates of lease and the defendants' later letters of allotment

Holding

The plaintiffs were allocated the suit properties first and held certificates of lease; the defendants were issued letters of allotment only in 2008, so the plaintiffs' interest ranks higher

Reasoning

The trial magistrate's finding that the defendants' allotments preceded the plaintiffs' was not supported by the evidence, which showed the defendants received letters of allotment in 2008, long after the plaintiffs' allocation and issuance of leases. A letter of allotment cannot override a duly registered title, and land already allocated cannot be reallocated unless the first allocation is validly cancelled.

p. 9
04

Duty of a first appellate court on findings of fact

Holding

A first appellate court re-evaluates the evidence and will not interfere with factual findings unless based on no evidence, misapprehension of evidence, or wrong principles

Reasoning

The court invoked the established principles in Selle v Associated Motor Boat Co., Mwanasokoni v Kenya Bus Service and Kiruga v Kiruga, re-evaluating the evidence to reach its own conclusions while being alive to the limited grounds for disturbing the trial court's factual findings.

p. 6

Legal principles established

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  • A letter of allotment, once accepted and its conditions complied with, confers an interest that cannot be displaced by a subsequent allocation; a registered title is superior to a letter of allotment
  • Fraud or illegality must be specifically pleaded with particulars and proved to the required standard
  • Certificates of lease issued under the Registered Land Act enjoy statutory protection and can only be challenged on the grounds contemplated in that Act

Court orders

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  1. 1.The appeal is allowed as prayed
  2. 2.The judgment of the learned trial magistrate dismissing the plaintiffs' suit and allowing the 2nd and 3rd defendants' counterclaim is set aside (implied by allowing the appeal)

Authorities

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Legislation

  • Registered Land Act, Cap 300 (repealed)Sections 27, 28, 143
  • Land Registration Act, 2012Section 107
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 2 Rule 4; Order 2 Rule 10(1)

Cases cited (20)

  • Joseph N.K Arap Ng’ok v. Moijo Ole Keiwua & 4 others
    (1997) e KLR
  • Elijah Makeri Nyangw’a vs. Stephen Mungai Njuguna & another
    (2013) e KLR
  • Republic v. City Council of Nairobi & 3 others
    (2014) e KLR
  • Solomon Kipchoge Kipsogei vs. Lake Victoria North Water Services Board & 3 others
    (2019) e KLR
  • Leah Magoma Ongai vs Attorney General
    (2015) e KLR
  • Daudi Kiptugen v. Commissioner of lands & 4 others
    (2015) e KLR
  • Re RE HEA (minor)
    (2011) eKLR
  • Macfoy v. United Africa Company Ltd
    (1961) 3 ALL ER 1169
  • Advisory Opinion Reference No.2 of 2014 - in the matter of the National Land Commission
    2015 e KLR
  • Simon Abuki Omboto v Kisii County Government & another
    (2015) e KLR
  • Munyu Maina vs. Hiram Gathima Maina
    (2015) e KLR
  • Kuria Kiarie & 2 others v. Sammy Magera
    (2018) e KLR
  • Selle & another vs. Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mwanasokoni vs. Kenya Bus Service Ltd
    (1982-88) 1 KAR
  • Kiruga vs. Kiruga & Another
    (1988) KLR 348
  • Rukaya Ali Mohamed vs. David Gikonyo Nambacha & Another
    Kisumu HCCA No. 9 of 2004
  • Muthithi Investments Limited v. Andrew S. Kyendo & 22 others
    (2014) eKLR
  • Lilian Waithera Gachuhi –vs- David Shikuku Mzee
    (2005) e KLR
  • Njuwangu Holdings Ltd –vs- Langata KPA Nairobi & 5 others
    ELC NO. 139 OF 2013
  • Satya Investments Ltd – Vs- J.K. Mbugua
    Civil Appeal NO. 164 of 2004
On appeal from
Senior Resident Magistrate's Court, Eldama Ravine
SRMCC Case No. 60 of 2015
Jurisdiction invoked
First appellate jurisdiction over the decision of the learned trial magistrate (trial court)

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, "Kiprop & 2 others v Korir & 2 others (Environment and Land Appeal E018 of 2022) [2024] KEELC 260 (KLR)", Case Analysis (2024). Eldama Ravine SRMCC Case No. 60 of 2015 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/260/eng@2024-01-25

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