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ELCPartially AllowedNot stated in the judgment text supplied· [2024] KEELC 766 (KLR)

Koske (Suing as the Legal Representative of the Estate of Michael Kipchirchir Bor) v Kipleitich (Environment & Land Case 76 of 2018) [2024] KEELC 766 (KLR)

Environment and Land Court of Kenya
21 February 2024
5,239 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 gave a family six acres of land back after 25 years, cancelling title and sales made during the case.

What this practically means

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Executive summary

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This is a first-instance Environment and Land Court judgment at Kitale. The Plaintiff, brother and legal representative of the late Michael Kipchirchir Bor, claimed that a 1997 Kapomboi Land Dispute Tribunal decision, adopted as the decree of Kitale Senior Principal Magistrates Court Land Case No. 71 of 1997, awarded Bor six of the twelve acres of Kapomboi/Kapomboi Block 3/Kobos/311 occupied by Elijah Leitich, with eviction orders issued in 2000. Leitich's judicial review application to quash the Tribunal's decision was dismissed for want of prosecution in 2001. After Leitich died, the Defendant, his widow, obtained registration of the whole parcel, subdivided it, and sold portions before and during the suit, with the title passing to parcel 743. The Defendant admitted in cross-examination that her title was not in line with the 1997 decree. The court framed two issues: proof of ownership of the six acres and entitlement to mesne profits. It found the Plaintiff had proved ownership on a balance of probability, holding DW2's evidence a mere relitigation of matters settled by the Tribunal, and applied the doctrine of lis pendens to quash the sales made pending the suit, declaring them unlawful ab initio and denying the purported purchasers any rights. The claim for mesne profits of Kshs. 720,000/- failed for want of proof of the specific sum. Judgment was entered for the Plaintiff on ownership; he was declared lawful proprietor of the six acres, the Defendant's registration in parcel 743 was cancelled, the Plaintiff was ordered registered in her place, eviction from the six acres was ordered, the pending-suit sales were quashed, and costs were awarded to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff proved ownership of six acres in the original parcel Kapomboi/Kapomboi Block 3/Kobos/311

Holding

Yes. The Tribunal's decision as adopted as the decree in Kitale SPMC Land Case No. 71 of 1997, and never disturbed on judicial review, established Bor's entitlement to six acres; the Defendant's admissions confirmed it and her subdivisions and sales remain subject to lis pendens.

Reasoning

The Kapomboi Land Dispute Tribunal, after an inquiry including a site visit to Nandi, found Bor entitled to six acres; that decision was adopted as judgment in Kitale SPMC Land Case No. 71 of 1997 and an eviction order issued. Leitich's judicial review application to quash the Tribunal's decision was dismissed for want of prosecution, so the decree stood. The Defendant admitted the court had awarded Bor six acres and that her title was not in line with the decree. Her conduct in subdividing and selling the land during the suit was a nullity under the doctrine of lis pendens.

p. 7
02

Whether the Plaintiff made a case for mesne profits of Kshs. 720,000/-

Holding

No. The specific sum was not proved by any evidence and the claim was dismissed.

Reasoning

The court adopted the statutory definition of mesne profits under Section 2 of the Civil Procedure Act and authority establishing that mesne profits must be pleaded and proved, and that no specific sum may be awarded without evidence supporting the actual figure. The Plaintiff gave no evidence supporting the Kshs. 720,000/- computation based on a Kshs. 6,000/- per acre lease rate, so the claim failed notwithstanding his success on ownership.

p. 9
03

The effect of the Defendant's subdivision and sale of the suit land before and during the pendency of the suit

Holding

The sales were unlawful; the doctrine of lis pendens rendered them of no effect ab initio, and the purported purchasers acquired no rights.

Reasoning

The court found the Defendant maliciously sold the suit land before and during the suit, changing the identity of the parcel from No. 311 to 633 and then 743, in an attempt to defeat justice. Relying on lis pendens authority, the court held that no valid transaction could be effected over land subject to pending litigation, and that purported purchasers deriving title from the Defendant acquired no rights whether or not they had notice.

p. 10

Legal principles established

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  • Mesne profits must be both pleaded and proved with evidence of the actual sum claimed
  • The doctrine of lis pendens renders alienations of suit property during the pendency of litigation unlawful and of no effect, including against parties who derive title from the defendant
  • Dealing with the subject matter of pending litigation to defeat justice amounts to indirect contempt and the courts must remain firm against it

Court orders

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  1. 1.The Plaintiff is the lawful proprietor of 6 acres of that land comprised in the original land parcel No. Kapomboi/Kapomboi Block 3/Kobos/311
  2. 2.A declaration that the Plaintiff, Josephat Kipkurgut Koske, is the lawful owner of six (6) acres comprised in L. R. No. Kapomboi/Kapomboi Block 3/Kobos/743
  3. 3.A declaration cancelling the registration of the Defendant as the owner of Kapomboi/Kapomboi Block 3/Kobos/743 and an order that the Plaintiff be registered as the owner of the said parcel of land forthwith
  4. 4.The Defendant and any person claiming through her is ordered to vacate the 6 acres of land comprised in the original land parcel No. Kapomboi/Kapomboi Block 3/Kobos/311
  5. 5.The purported sale(s) of the suit land during pendency of the suit are quashed and declared unlawful and of no effect ab initio
  6. 6.The Plaintiff's claim for Mesne Profits of Kshs. 720,000/- is declined and dismissed
  7. 7.Costs of the suit to be borne by the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 2 (definition of mesne profits)
  • Civil Procedure RulesOrder 21 Rule 13

Cases cited (6)

  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR
  • Attorney General v Halal Meat Products Limited
    [2016] eKLR
  • Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees
    [2020] eKLR; Civil Appeal 208 of 2018
  • Peter Mwangi Msuitia & Another v Samow Edin Osman
    [2014] eKLR
  • Rose Wakanyi Karanja & 3 others v Geoffrey Chege Kirundi & another
    [2016] eKLR; Civil Appeal 172 of 2010
  • Mawji v US International University & Another
    [1976] KLR Page 199
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land ownership, title and trespass claims

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, "Koske (Suing as the Legal Representative of the Estate of Michael Kipchirchir Bor) v Kipleitich (Environment & Land Case 76 of 2018) [2024] KEELC 766 (KLR)", Case Analysis (2024). Not stated in the judgment text supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/766/eng@2024-02-21

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