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ELCDismissed· [2024] KEELC 3704 (KLR)

Keter & another (Both Suing as the Legal Representatives and Beneficiaries of the Estate of the Late Kipketer Arap Ngeny - Deceased) v Maiywa & 22 others (Environment & Land Case 78 of 2018) [2024] KEELC 3704 (KLR)

Environment and Land Court
9 May 2024
5,287 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 land fraud claim failed because fraud wasn't strictly proved, and the boundary dispute was sent to the Land Registrar instead.

What this practically means

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Executive summary

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The Plaintiffs, administrators of the estate of Kipketer Arap Ngeny (proprietor of Kericho/Kyongong/69), sued 23 Defendants seeking declarations that the subdivision and boundaries of parcels Kericho/Kyongong/60, 68 and 762 were fraudulently done in contravention of the Law of Succession Act, encroaching 3 acres of their parcel; they sought resurvey and permanent fixation of boundaries, damages, costs and interest. Most Defendants did not participate; the 4th, 8th-18th Defendants filed a defence but did not testify; the 19th and 20th Defendants (Land Registrar and District Surveyor) entered appearance through the Hon. Attorney General but filed no defence, only submissions. The 1st Plaintiff testified, relying on a certificate of confirmation of grant and a surveyor's report of 19th August 2019 showing acreage discrepancies on all three parcels. The court, applying R.G Patel v Lalji Makanji, held that although fraud was pleaded, it was not strictly proved: the survey showed discrepancies across all parcels including the neighbour's, with well-fenced boundaries long respected without dispute, indicating survey discrepancy rather than deceit. No cause of action was thus established. The court also held that the parcels were registered under general boundaries, so any boundary dispute must in mandatory terms first be determined by the Land Registrar under section 18(2) of the Land Registration Act. The suit was dismissed with no costs, and the boundary dispute referred to the Land Registrar Bomet, to visit the suit premises within 30 days. The court found the claim was not time-barred, limitation running from discovery of the discrepancy in 2017.

Key legal issues

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01

Whether fraud was proved in the subdivision and registration of the suit parcels

Holding

Fraud was not proved; the surveyor's report showed only measurement discrepancies with existing demarcated boundaries respected by all proprietors

Reasoning

The plaintiff pleaded fraud distinctly but had to prove it strictly. The surveyor's report dated 19th August 2019 showed discrepancies between registered and ground areas across all three parcels, including the neighbour's parcel being less by 0.228 hectares, indicating survey error rather than deceit. The parcels were well fenced and all proprietors had lived peacefully without boundary disputes, so no evidence of fraud was adduced.

p. 8
02

Whether the plaintiffs had a cause of action

Holding

No cause of action was established against the Defendants

Reasoning

A cause of action requires a set of facts sufficient to justify a right to sue. Having found no fraud attributable to the Defendants, and noting the adjoining parcel Kericho/Kyongong/68 was itself short by 0.228 hectares, the alleged encroachment theory collapsed and no enforceable right against the Defendants was demonstrated.

p. 8
03

Whether the surveyor's finding of 19th August 2019 should be upheld

Holding

The court declined to adopt the surveyor's finding as its judgment; general boundary disputes fall for determination by the Land Registrar under section 18(2) of the Land Registration Act

Reasoning

Titles under the repealed Registered Land Act were issued on general boundaries, defined as approximate boundaries. Such disputes are resolved by physical features on the ground and must be handled by the Land Registrar, not surveyors or the court. Accordingly the court referred the boundary dispute to the Land Registrar Bomet for determination within 30 days.

p. 10
04

Whether the claim was time-barred under the Limitation of Actions Act

Holding

The claim was not time-barred because limitation for fraud-based claims runs from discovery of the fraud

Reasoning

Section 4(2) of the Limitation of Actions Act prescribes three years for tort claims, but section 26 postpones the running of time for fraud-based actions until the plaintiff discovers or could with reasonable diligence have discovered the fraud. The plaintiff discovered the acreage discrepancy in 2017 upon receipt of the confirmation of grant and filed suit in 2018, thus within time.

p. 7

Legal principles established

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  • Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
  • Where a fraud-based claim is pleaded, limitation does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud
  • Disputes over general boundaries must in mandatory terms first be submitted to the Land Registrar before escalation to the ELC
  • Submissions cannot take the place of evidence

Court orders

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  1. 1.The Plaintiffs' suit is dismissed with no costs
  2. 2.The matter is referred to the Land Registrar Bomet, who shall visit the suit premises within 30 days of delivery of the judgment to determine the boundary dispute

Authorities

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Legislation

  • Evidence ActSection 107
  • Civil Procedure ActSections 1A and 1B
  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 26
  • Land Registration ActSection 18(1) and 18(2)
  • Land Registration ActSection 79(1)
  • Registered Land Act (repealed)Section 21(2)
  • Environment and Land Court ActSection 13(2)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (8)

  • General Properties Limited v Saika Two Estate Developers Limited
    [2021] eKLR
  • Kuria Kiarie & 2 Others v Sammy Magera
    [2018] eKLR
  • Republic v Chief Land Registrar & another, Ex-parte Yosabia Kerubo Manyura
    [2018] eKLR
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • R.G Patel vs Lalji Makanji
    1957 E.A 314
  • Azzuri Limited v Pink Properties Limited
    [2017] eKLR
  • Ali Mohamed Salim vs Faisal Hassan Ali
    (2014) eKLR
  • Samuel Wangau Vs. AG & 2 others
    (2009) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with section 13(2) of the Environment and Land Court Act

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, "Keter & another (Both Suing as the Legal Representatives and Beneficiaries of the Estate of the Late Kipketer Arap Ngeny - Deceased) v Maiywa & 22 others (Environment & Land Case 78 of 2018) [2024] KEELC 3704 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3704/eng@2024-05-09

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