Kenduiywa v Ngetich & another (Environment and Land Appeal 3 of 2022) [2024] KEELC 1213 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed a land title can be cancelled when the seller never legally owned the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's title to LR Kericho/Kimulot/1836 was lawfully acquired
The title was acquired illegally, un-procedurally or through a corrupt scheme because the transfer was effected long after the registered owner's death, with no transmission process effected on the estate
The Land Registrar's evidence and the green card showed the last registered proprietor, Francis Kipkebut Cherogony, died long before the subdivisions and the 2018 transfer to the Appellant. A confirmation of grant issued to Sarah Cherogony in 1988 was never translated into transmission. The vendor, Charles Langat, was never the registered owner and had no title to pass, rendering the transaction void ab initio.
Whether the trial Magistrate erred in cancelling the title without specifying the parcel to which the land would revert
No error; the court directed that the cancelled title reverts to the estate of the deceased registered proprietor
Although the Appellant argued the cancellation left the parcel without a number or owner, the appellate court, affirming the cancellation under Section 80(1) of the Land Registration Act, directed that the parcel revert to the estate of Francis Kipkebut Cherogony, the last legitimate registered proprietor, curing any implementation gap.
Whether the trial Magistrate erred by relying on the Respondents' documentary evidence without calling the Land Registrar
The submission failed because the Land Registrar in fact testified as DW6 and gave the registration history of the suit land
The Appellant's ground that the Land Registrar was not called to explain the registration status was factually incorrect: the Bomet Land Registrar testified as DW6, traced the parcel from Kericho/Kimulot/209 through successive subdivisions, and confirmed that the transfer to the Appellant was improper since the registered owner was deceased at the time of transfer.
Legal principles established
#- Allegations of fraud must be strictly proved to a standard above mere balance of probabilities
- A registered proprietor whose root of title is under challenge must prove the legality of how he acquired the title, not merely dangle the title instrument
- No valid transfer of land can be made by a transferor who has no title to transfer; such a transfer is null and void ab initio
- A first appellate court will not interfere with findings of fact by the trial court unless based on no evidence, misapprehension of the evidence, or a wrong principle
Court orders
#- 1.The appeal is dismissed with costs
- 2.Title to parcel No. Kericho/Kimulot/1836, having been cancelled by the trial court, shall revert to the estate of the deceased Francis Kipkebut Cherogony forthwith
- On appeal from
- Principal Magistrate's Court at Bomet
- PMC ELC Case No. E011 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenduiywa v Ngetich & another (Environment and Land Appeal 3 of 2022) [2024] KEELC 1213 (KLR)", Case Analysis (2024). ELC Appeal (Environment and Land Court, Naivasha), arising from PMC ELC Case No. E011 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1213/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.