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ELCDismissedELC Appeal (Environment and Land Court, Naivasha), arising from PMC ELC Case No. E011 of 2020· [2024] KEELC 1213 (KLR)

Kenduiywa v Ngetich & another (Environment and Land Appeal 3 of 2022) [2024] KEELC 1213 (KLR)

Environment and Land Court
7 March 2024
6,999 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant, John Kipngeno Kenduiywa, appealed against the judgment of Hon. K. Kibelion, Principal Magistrate at Bomet, delivered on 4th May 2022 in PMC ELC Case No. E011 of 2020, which allowed the Respondents' counterclaim and cancelled title No. Kericho/Kimulot/1836 registered in the Appellant's name on the ground that the transfer was fraudulent, the transferee having been long deceased at the time of the transaction. The Appellant had purchased the land in 2013 from Charles Kipngetich Langat, the Respondents' father, but Langat was not the registered owner; the land traced back to the original parcel Kericho/Kimulot/209, last registered to Francis Kipkebut Cherogony, who died decades before the subdivisions and the 2018 transfer to the Appellant. The Land Registrar testified as DW6 that the transfer to the Appellant was improper as the registered owner was deceased and no transmission of the estate had ever been effected. The Appellant's nine grounds of appeal - including that the Registrar was not called, that uncertified documents were relied upon, and that his title was not an isolated conferment - all failed. Applying R.G Patel v Lalji Makanji and Munyu Maina v Hiram Gathiha Maina, the court held that the Respondents distinctly pleaded and proved fraud and that the Appellant's root of title was illegal, un-procedural and through a corrupt scheme, since the vendor had no title to pass. The appeal was dismissed with costs, and the court directed that the cancelled parcel revert to the estate of Francis Kipkebut Cherogony forthwith.

Key legal issues

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01

Whether the Appellant's title to LR Kericho/Kimulot/1836 was lawfully acquired

Holding

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

Reasoning

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.

p. 12
02

Whether the trial Magistrate erred in cancelling the title without specifying the parcel to which the land would revert

Holding

No error; the court directed that the cancelled title reverts to the estate of the deceased registered proprietor

Reasoning

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.

p. 12
03

Whether the trial Magistrate erred by relying on the Respondents' documentary evidence without calling the Land Registrar

Holding

The submission failed because the Land Registrar in fact testified as DW6 and gave the registration history of the suit land

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs
  2. 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

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 4
  • Land Registration ActSection 26(1)
  • Land Registration ActSections 24, 25, 80(1)
  • Land Control ActSection 6(1)(a)
  • Evidence ActSection 107(1)
  • Constitution of Kenya, 2010Article 40 and Article 40(6)

Cases cited (10)

  • Vijay Morjaria vs. Nansingh Madhusingh Dardar & Another
    [2000] eKLR
  • Kinyanjui Kamau vs. George Kamau
    [2015] eKLR
  • Evanson Wambugu Gachugi vs. Simon Wainaina Gatwiki & 2 Others
    [2014] eKLR
  • Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Munyu Maina vs. Hiram Gathiha Maina
    [2013] eKLR
  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR, 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • R.G Patel vs Lalji Makanji
    1957 EA 314
  • Arthi Highway Developers Ltd vs West End Butchery Ltd & Others
    [2015] eKLR
  • Jivanji vs. Sanyo Electrical Company Ltd
    [2003] KLR 425 at p. 431
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

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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, "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.