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ELCPartially AllowedELC Case (Block 139 plot No. 203, Soy) - number not stated in judgment· [2024] KEELC 6232 (KLR)

Cheburet v Ngobitwo Farmers Co-operative Society Limited; Kiberut & 2 others (Interested Parties) (Environment & Land Case 24 of 2014) [2024] KEELC 6232 (KLR)

Environment and Land Court
30 September 2024
5,261 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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Kenya's Environment and Land Court ruled that land titles obtained through fraud, even while an injunction was in place, cannot stand.

What this practically means

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Executive summary

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The plaintiff, a member of the defendant co-operative society, sued for an injunction over his 4 acres in Block 139 (plot No. 203) and an order compelling the defendant to issue him title. He had paid registration fees, shares totalling Kshs 200,000 equivalent to 4½ acres, and survey fees; after surrendering half an acre for public utilities he was shown, settled on and fenced his 4 acres. In 2014, while an injunction granted on 27.3.2014 was subsisting and with both parties' advocates present in court when it was issued, the defendant facilitated the three interested parties in processing titles over the entire 4 acres. The plaintiff amended his plaint in 2018 to seek cancellation of those titles. The interested parties filed a defence and counterclaim seeking declarations, a permanent injunction against the plaintiff and damages. The court framed ten issues. It held the suit was not res judicata, the defendant having abandoned its preliminary objection on the point and the issues in ELC No. 977 of 2012 being different. It found the plaintiff had fully paid for his land, that there was no requirement that payments be completed by 31.12.1999, that he was put in possession, that there was no evidence of any plan to allocate him land in Block 146 or to refund him, and that the interested parties were shown portions other than the plaintiff's. It found the plaintiff had proved pleaded fraud: titles procured through a corrupt scheme in defiance of a subsisting injunction cannot be indefeasible. The counterclaim was dismissed with costs. The plaintiff's claim was allowed in terms of prayers (a), (aa), (b) and (c) - injunctions and an order compelling issuance of title - with costs. Judgment delivered at Eldoret on 30th September 2024 by E. O. Obaga, Judge.

Key legal issues

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01

Whether the suit is res judicata

Holding

Not res judicata; the issues in ELC 977 of 2012 were different and the defendant failed to pursue its preliminary objection in time

Reasoning

The defendant alleged the suit was res judicata based on ELC No. 977 of 2012, but the issues there differed from those here. The defendant filed a preliminary objection on res judicata on 29.6.2019 but never pursued it, contrary to the principle that jurisdictional objections should be raised at the earliest opportunity. The court found the suit not res judicata.

p. 7
02

Whether the plaintiff fully paid for his 4 ½ acres

Holding

Yes - he paid registration fees, shares and survey fees and fully paid for the 4 acres he occupies

Reasoning

The court traced the plaintiff's payments: registration fees of Kshs 2,000 on 17.2.2000, Kshs 150,000 for shares the same day, a further Kshs 50,000 on 11.3.2000, survey fees of Kshs 4,100 in 2002 and Kshs 1,200 in 2006. After surrendering half an acre for public utilities, the plaintiff was found to have fully paid for the remaining 4 acres.

p. 8
03

Whether payment had to be completed by 31.12.1999 to benefit from Block 139

Holding

No such requirement existed on the evidence

Reasoning

The defendant argued a strict completion date of 31.12.1999 for payments by members entitled to Block 139. The court found no evidence, on record or in the evidence adduced, of any such requirement. Members who registered and paid in 2000 were shown where to reside pending survey. The defendant could not rely on a non-existent requirement to deprive the plaintiff of his land.

p. 8
04

Whether the interested parties were allocated the same land shown to the plaintiff

Holding

No - the interested parties were shown different portions other than the plaintiff's portion

Reasoning

On cross-examination, the 1st interested party admitted the portion shown to him by his vendor, Florence Sumukwo, was not the one for which he held title, and that he was shifted to land he found fenced. The 2nd interested party was shifted from his original position after the 2006 survey. The 3rd interested party resided elsewhere. The court held the defendant's officials could not use their allocation discretion to settle members on another member's land.

p. 9
05

Whether the defendant was right to process titles for the interested parties over land occupied by the plaintiff

Holding

No - the defendant and interested parties acted through a corrupt scheme in defiance of a subsisting injunction, rendering the titles impeachable

Reasoning

An injunction was granted on 27.3.2014 with the defendant's advocate and the interested parties' advocate present. Despite this, titles were processed for the interested parties in 2014 and 2018. The court rejected the argument that the plaintiff failed to register the order with the Land Registrar, held that the interested parties had knowledge through their advocate, and found the plaintiff had proved his pleaded allegations of fraud, defeating indefeasibility of title.

p. 10

Legal principles established

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  • A title obtained through a fraud or corrupt scheme, with knowledge of a pending suit and subsisting injunction, cannot stand and is not indefeasible
  • A plea of res judicata must be raised at the earliest opportunity and fails where the issues in the two suits are different
  • A party alleging fraud bears the burden of strictly proving it; where proved, indefeasibility of title falls away

Court orders

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  1. 1.The interested parties' counterclaim is dismissed with costs to the plaintiff
  2. 2.Prayer (a) - injunction restraining the defendant from interfering with the plaintiff's parcel known as Block 139 plot No. 203 / his 4 acres - is granted
  3. 3.Prayer (aa) - injunction restraining the defendant from interfering with Block 139 now known as SOY/SOY Block 10 (Navillus) 2933, 2936 and 2937 - is granted
  4. 4.Prayer (b) - an order compelling the defendant to issue title in favour of the plaintiff - is granted
  5. 5.Prayer (c) - costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration Actsection 24(a)
  • Land Registration Actsection 25
  • Land Registration Actsection 26(1)
  • Evidence Actsection 107

Cases cited (11)

  • Musa Kiptai Mulwo –Vs- Ngobitwa Farmers' Co-Operative Society Limited & 3 others
    (2019) eKLR
  • Henderson –Vs- Henderson
    (1843 – 60) All ER 378
  • Owners of the Motor Vessel "Lillians" –Vs- Caltex Oil (Kenya) Ltd
    (1989) KLRI
  • Joseph Arap Ngok – Vs- Justice Moijo Ole Keiwa & 5 others
    eKLR Nairobi Civil Application No. 60 of 1997
  • Samuel Ambasa & 3 others –Vs- Stella Ingasia
    (2022) eKLR
  • Koinange & 13 others –vs- Koinange
    (1986) KLR 23
  • Mbuthia Macharia –vs- Anna Mutua Ngwiga & another
    (2015) eKLR
  • Rantilal Gardhanbhai Palel – vs- Lalji Makanji
    (1967) EA 314
  • PWM –vs- JMM
    (2019) eKLR
  • Samuel Gitari Ngiria –vs- Judith Wambui Mithike (sued as the legal representative of the Estate of John Mungu Wagake) & others
    (2021) eKLR
  • Bhangwan Singh Kalsi –Vs- National Housing Co-operation
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Cheburet v Ngobitwo Farmers Co-operative Society Limited; Kiberut & 2 others (Interested Parties) (Environment & Land Case 24 of 2014) [2024] KEELC 6232 (KLR)", Case Analysis (2024). ELC Case (Block 139 plot No. 203, Soy) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6232/eng@2024-09-30

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