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ELCPartially AllowedELC Appeal (Kapsabet) - Memorandum of Appeal dated 16th February 2023 (suit property Nandi/kaptumek/780; appeal from Kapsabet CMs Civil Case No. 201/2016)· [2024] KEELC 4149 (KLR)

Mutai v Serem & 3 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 4149 (KLR)

Environment and Land Court
16 May 2024
MMM. N. Mwanyale
2,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled a seller can only transfer the land she legally owned, cutting the buyer's parcel from 1.4 to 1.2 acres.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kapsabet against the judgment of Hon. S. M. Mokua, CM delivered on 6 February 2023 in Kapsabet CMs Civil Case No. 201/2016, in which the plaintiff (now 1st respondent) had sued for trespass, a declaration of ownership and an injunction over 0.2 acres of Nandi/kaptumek/780, and his claim had succeeded at trial. James Kiptanui Mutai, the appellant, appealed on seven grounds, contending the trial court erred in disregarding his defence and evidence of a sale agreement, and failed to recognise he was entitled to occupy 0.2 acres. The suit parcel was a subdivision of Nandi/kaptumek/153 arising from Succession Cause No. 79/2004 (Estate of Baraiywa Kiptallam), in which Sally Jepkemei was bequeathed 1.2 acres, yet the sale agreement with the plaintiff covered 1.4 acres. Applying the nemo dat quod non habet principle, the court held Sally Jepkemei could only convey 1.2 acres and the extra 0.2 acres never legally passed to the plaintiff. The court therefore found the plaintiff had not proved his trespass claim and that the trial court erred in finding a valid title over 1.4 acres. Allowing the appeal under Section 78(1)(a) of the Civil Procedure Act, the court set aside the trial judgment, ordered the Land Registrar, Nandi County to rectify the register of Nandi/kaptumek/780 from 1.4 acres to 1.2 acres under Section 80 of the Land Registration Act, restricted the 1st respondent to his 1.2 acres, and awarded the appellant the costs of the suit and of the appeal.

Key legal issues

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01

Extent of the interest purchased from Sally Jepkemei

Holding

The Plaintiff could legally acquire only 1.2 acres in Nandi/kaptumek/780 and not 1.4 acres

Reasoning

The Certificate of Confirmation of Grant in Succession Cause No. 79/2004 bequeathed Sally Jepkemei 1.2 acres, registered as entry No. 4 in the green card. Although the sale agreement covered 1.4 acres, she could not sell what she did not own. Applying the nemo dat quod non habet principle, the extra 0.2 acres never passed to the Plaintiff; land does not expand.

p. 5
02

Whether the Plaintiff proved his trespass claim and counterclaim entitled the Appellant to succeed

Holding

The Plaintiff did not prove his case; the 1st Appellant's defence ought to have succeeded and the trial court erred in holding otherwise

Reasoning

The gravamen was trespass over 0.2 acres. Since the Plaintiff was entitled only to 1.2 acres, there was no trespass over the 0.2 acres occupied by the Appellant. The trial court's finding that the Plaintiff had demonstrated a valid title fell into error in light of the nemo dat principle, so the defendant's defence should have succeeded.

p. 5
03

Whether the appeal was merited and the reliefs to issue

Holding

The appeal merited; the trial judgment set aside and the register ordered rectified under Section 80 of the Land Registration Act

Reasoning

Under Section 78(1)(a) of the Civil Procedure Act the court set aside the trial judgment. The acreage in the title was inconsistent with the 1.2 acres recorded in the green card of the parent parcel, so the title was issued irregularly as to acreage, justifying rectification under Section 80 of the Land Registration Act.

p. 5

Legal principles established

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  • A vendor can only transfer such interest in land as he lawfully holds - nemo dat quod non habet applies to land transactions
  • A certificate of title may be challenged on grounds set out in Section 26(1)(a) or (b) of the Land Registration Act, and an irregularly issued title as to acreage may be rectified under Section 80

Court orders

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  1. 1.The appeal is allowed and the judgment of the trial Court is set aside
  2. 2.The Land Registrar, Nandi County is ordered to rectify the register of Nandi/kaptumek/780, from 1.4 acres to reflect the correct acreage of 1.2 acres under section 80 of the Land Registration Act
  3. 3.The 1st Respondent is restricted to the use of his 1.2 acres and not to interfere with the 0.2 acres that do not belong to him
  4. 4.The Appellant, James Kiptanui Mutai, is awarded the costs of the suit as well as costs of this Appeal

Authorities

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Legislation

  • Land Registration ActSections 24, 26, 26(1)(a) and (b), 28, 62(1), 80
  • Civil Procedure ActSections 27, 78(1)(a)
  • Trespass ActSection 3

Cases cited (9)

  • Selle & another v Associated Motor Boat Company Ltd & others
    (1968) E.A.
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Company Advocates
  • Kinara v Liasa
    E & L Appeal No. E040 of 2021
  • Opiyo and another v Olunje
    Civil Appeal No. 148/2018
  • Diamond Trust Bank Kenya Limited v Said Hamad Shamisi & 2 others
    (2015) eKLR
  • Daniel Kipkuirgat Maiywa v Rebeca Chepkurgat Maina
    (2019) eKLR
  • Geoffrey Kiptarbei Rono v Johana Komen Rotich & Another
    (2021) eKLR
  • Katan Kalume & another v Municipal Council of Mombasa & another
    (2019) eKLR
  • Margaret Mukami Macharia v Maina Gitau
    (2022) eKLR
On appeal from
Chief Magistrate's Court, Kapsabet
CMs Civil Case No. 201/2016 (Joseph Kipkosgei Serem v James Kiptanui & 3 others)
Jurisdiction invoked
First appellate jurisdiction under Section 78(1)(a) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutai v Serem & 3 others (Environment and Land Appeal E002 of 2023) [2024] KEELC 4149 (KLR)", Case Analysis (2024). ELC Appeal (Kapsabet) - Memorandum of Appeal dated 16th February 2023 (suit property Nandi/kaptumek/780; appeal from Kapsabet CMs Civil Case No. 201/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4149/eng@2024-05-16

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