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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff proved ownership of six acres in the original parcel Kapomboi/Kapomboi Block 3/Kobos/311
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.
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.
Whether the Plaintiff made a case for mesne profits of Kshs. 720,000/-
No. The specific sum was not proved by any evidence and the claim was dismissed.
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.
The effect of the Defendant's subdivision and sale of the suit land before and during the pendency of the suit
The sales were unlawful; the doctrine of lis pendens rendered them of no effect ab initio, and the purported purchasers acquired no rights.
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.
Legal principles established
#- 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
#- 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.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.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.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.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.The Plaintiff's claim for Mesne Profits of Kshs. 720,000/- is declined and dismissed
- 7.Costs of the suit to be borne by the Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land ownership, title and trespass claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.