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ELCPartially AllowedEnvironment & Land Case E159 of 2023· [2024] KEELC 4828 (KLR)

Rayit & 2 others v Rayit (Environment & Land Case E159 of 2023) [2024] KEELC 4828 (KLR)

Environment and Land Court
13 June 2024
4,099 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court evicted a family member from inherited property, confirming that even relatives with long residence cannot override a registered owner's title.

What this practically means

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Executive summary

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The Plaintiffs, administrators and the absolute beneficiary of the estate of the late Tarsem Singh Rayit, sued the Defendant, a co-administrator, seeking his eviction from Plot Number LR. 1870/IX/59 Muthithi Road, delivery up of the title to the 3rd Plaintiff, and police assistance in enforcement. The Plaintiffs asserted that the 3rd Plaintiff is the absolute beneficiary under the will dated 31/05/2005 and that a mediated agreement of 2017, affirmed by Justice Stella Mutuku in 2022, vested final authority in her, yet the Defendant trespassed, ran businesses on the property without consent, and collected rental income unilaterally. The Defendant acknowledged the will and the mediation agreement but justified his occupation and conduct as executor of the estate, claiming 40 years' residence and verbal authority from his mother, and asked that the suit be dismissed. The Court framed two issues: entitlement to the orders sought and costs. Applying Articles 40 of the Constitution and Sections 24, 25, 26 and 28 of the Land Registration Act, the Court held the 3rd Plaintiff's beneficial ownership undisputed and the will's validity unchallenged. The Defendant, by his own admission, had acted contrary to the valid, unvacated mediation agreement. The Court declined to consider evidence of a later revocation of the grant raised only in submissions. The Plaintiffs proved their claim on a balance of probability. Judgment was entered for the Plaintiffs as prayed, save for the spent prayer (iii); eviction, delivery of title, and police assistance were ordered. As the suit was between family members, each party was directed to bear their own costs.

Key legal issues

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01

Whether the Plaintiffs proved their claim to be entitled to the orders sought

Holding

Yes - the 3rd Plaintiff is the absolute beneficial owner under the will, the Defendant acted contrary to the valid and unvacated mediation agreement of 27/07/2017, and the Plaintiff's proved their claim on a balance of probability.

Reasoning

The Court found it undisputed that the 3rd Plaintiff is the absolute beneficial owner of the suit property per clause 2 of the will dated 31/05/2005, whose validity had never been successfully contested. The Defendant admitted running businesses and permitting entities on the property without the 3rd Plaintiff's consent, contrary to the mediation agreement dated 27/07/2017 which had not been set aside or vacated and was affirmed by the succession court. The Defendant thus had no legal right to remain on the property.

p. 7
02

Whether the Court could rely on the ruling of 6/05/2024 revoking the grant, introduced only in the Plaintiff's written submissions

Holding

No - new issues cannot be raised in submissions and the Court would rely only on the evidence filed.

Reasoning

The Plaintiffs attempted to introduce, in their written submissions, evidence of a ruling delivered on 6/05/2024 by Hon. Lady Justice Maureen Odero revoking the grant and issuing a fresh one. The Court held that submissions are not pleadings and there was no affidavit evidence supporting them, so it declined to consider that material and relied only on the evidence filed when the suit was filed.

p. 6
03

Who should bear the costs of the suit

Holding

Each party to bear their own costs, exceptional circumstances existing as the suit was between family members.

Reasoning

Although costs follow the event under Section 27 of the Civil Procedure Act and the successful party ordinarily gets costs, the Court found exceptional circumstances because the suit was filed between family members, and directed each party to bear their own costs notwithstanding the Plaintiffs' success.

p. 7

Legal principles established

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  • A certificate of title is prima facie evidence of ownership and can only be challenged on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme.
  • The rightful owner of land has a right to possession, occupation and use of the suit land.
  • New issues cannot be raised in written submissions; submissions are not pleadings and are not evidence.
  • Costs follow the event but the Court has discretion to order each party to bear their own costs in exceptional circumstances, such as suits between family members.

Court orders

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  1. 1.An eviction order is hereby issued against the Defendant, his servants, agents, employees, heirs and dependants or any other person claiming through him from Plot Number LR. 1870/Ix/59 Muthithi Road.
  2. 2.The Defendant is hereby ordered to forthwith deliver up the title of the property known as Plot Number LR. 1870/Ix/59 Muthithi Road to the 3rd Plaintifi.
  3. 3.The O.C.S. Parklands Police Station is hereby ordered to provide security and assistance during the enforcement of the orders above.
  4. 4.Each party shall bear their own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSection 24
  • Land Registration ActSection 25
  • Land Registration Act, 2012Section 26(1)
  • Land Registration ActSection 28
  • Civil Procedure ActSection 27

Cases cited (1)

  • Republic v Chairman Public Procurement Administrative Review Board & another Ex-Parte Zapkass Consulting and Training Limited & another
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (jurisdiction of the Environment and Land Court over disputes relating to use, occupation and title to land)

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, "Rayit & 2 others v Rayit (Environment & Land Case E159 of 2023) [2024] KEELC 4828 (KLR)", Case Analysis (2024). Environment & Land Case E159 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4828/eng@2024-06-13

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