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ELCPartially AllowedOriginating Summons dated 14th October 2013 (ELC Nairobi, transferred to Kajiado)· [2024] KEELC 5751 (KLR)

Keshenke v Rune (Suing as the Administrator of the Estate of Palle Juel Rune) (Enviromental and Land Originating Summons 404 of 2017) [2024] KEELC 5751 (KLR)

Environment and Land Court
29 April 2024
1,723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 14th October 2013 seeking a declaration that he was entitled to be registered as proprietor of LR No. Kajiado/Loodariak/1092, rectification of the register, and an order compelling the Defendant to execute transfer documents. He claimed that in September 1990 he entered a verbal three-year lease with the Defendant at an annual rent of Kshs. 3,600, but the Defendant fraudulently transferred the property to himself after the original title deed was entrusted to him. The Defendant, administrator of the estate of the late Palle Juel Rune, denied fraud and counterclaimed, asserting that his father purchased the twenty-acre property from the Plaintiff in 1990 for Kshs. 60,000, received completion documents, and was issued title on 18th December 1990, remaining in possession since. He sought a declaration of ownership, an eviction order, and an injunction. The Plaintiff failed to appear to prosecute his case, which was dismissed; the counterclaim proceeded, with PW1 Torben Peter Rune testifying to the purchase, possession, borehole and avocado farming. The court framed three issues: whether the counterclaim was merited, entitlement to reliefs, and costs. Applying Sections 107(1) of the Evidence Act and Sections 24(a) and 26 of the Land Registration Act, and applying Court of Appeal and Supreme Court authority on indefeasibility of title, the court held the Defendant proved lawful acquisition on a balance of probabilities, uncontradicted by any evidence of fraud or illegality. Judgment was entered declaring the Defendant's ownership, issuing a permanent injunction against the Plaintiff, and awarding costs to the Defendant.

Key legal issues

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01

Whether the Defendant proved ownership of LR No. Kajiado/Loodariak/1092

Holding

Yes; the Defendant proved on a balance of probabilities that his late father lawfully purchased and was validly registered as owner of the suit property in 1990

Reasoning

The Defendant produced a certificate of search showing registration of Palle Juel Rune with title issued on 18th December 1990, a letter acknowledging receipt of Kshs. 60,000 purchase price, and a Land Control Board consent application dated 13th September 1990. Under Sections 24(a) and 26 of the Land Registration Act, the title is prima facie and indefeasible. The uncontroverted registration was not shown to have been procured illegally, fraudulently or unprocedurally.

p. 3
02

Whether the Defendant was entitled to the reliefs sought in the Counterclaim

Holding

The court granted a declaration of ownership and a permanent injunction, though the judgment's final orders do not include the eviction order sought

Reasoning

With the Plaintiff's case dismissed for want of prosecution, the counterclaim stood uncontroverted. The court found no reason to deprive the Defendant of the title and entered judgment accordingly. The final orders granted a declaration, a permanent injunction restraining the Plaintiff from dealing with the property, and costs, but did not expressly grant the eviction order prayed for in the counterclaim.

p. 4
03

Who should bear the costs of the suit

Holding

The Plaintiff, having instituted proceedings but failed to diligently pursue his claim, should bear the costs

Reasoning

The principle that costs follow the event applied. The Plaintiff instituted the suit but did not prosecute it; there was no compelling reason to depart from the established principle. Costs were accordingly awarded to the Defendant against the Plaintiff.

p. 4

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud, misrepresentation, or illegality, unprocedurality or corruption in its acquisition
  • Registration of a person as proprietor vests absolute ownership of the land in that person
  • He who alleges must prove; facts asserting a legal right or liability must be proved by the party asserting them
  • Costs follow the event unless the court for good reason orders otherwise

Court orders

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  1. 1.Declaration that Torben Peter (Administrator of the estate of Palle Juel Rune) is the registered owner of property Kajiado/Loodariak/1092
  2. 2.Permanent injunction restraining the Plaintiff, his servants or assignees from trespassing or in any way dealing with LR No. Kajiado/Loodariak/1092
  3. 3.Costs of the suit borne by the Plaintiff
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act (ELC, transferred from Nairobi to Kajiado)

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, "Keshenke v Rune (Suing as the Administrator of the Estate of Palle Juel Rune) (Enviromental and Land Originating Summons 404 of 2017) [2024] KEELC 5751 (KLR)", Case Analysis (2024). Originating Summons dated 14th October 2013 (ELC Nairobi, transferred to Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5751/eng@2024-04-29

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