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ELCAllowedNot stated in the judgment text (Environment and Land Court suit at Kapsabet)· [2024] KEELC 6495 (KLR)

Jepkemboi & another (Both Suing as Personal Representatives of the Estate of the Late Esther Jelel – Deceased) v Kipkemboi (Suing as the Administrator of the Estate of the Late Kibet Arap Ngisirei) (Environment & Land Case E004 of 2023) [2024] KEELC 6495 (KLR)

Environment and Land Court of Kenya
3 October 2024
5,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided a land subdivision built on a consent order recorded in a dismissed case, restoring the original 18-acre parcel to the parties' 1995 shares.

What this practically means

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Executive summary

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Jane Jepkemboi and Bethwel Kibichii Limo, administrators of the Estate of Esther Jelel, sued Kibet Arap Ngisirei (later substituted by Julius Kipkemboi, Administrator Ad Litem, after the defendant died mid-trial) challenging the subdivision of Nandi/Lelmokwo/123 into Nandi/Lelmokwo/789 (defendant, about 15 acres) and 790 (Esther Jelel, about 3 acres) pursuant to a consent of 22/10/2012 and decree of 26/10/2012 recorded in Eldoret High Court Civil Suit No. 36/2005. The plaintiffs pleaded that the subdivisions were fraudulent and unlawful, relying on a 1995 Nandi Lands Dispute Tribunal award, adopted in Kapsabet SRMCC No. 29 of 1995, giving Esther Jelel 12 acres and the defendant 6 acres. The defendant pleaded res judicata and justified the subdivisions by the consent. The court, with a court-directed surveyor's report on record, first held the suit was not res judicata: the previous suit had been dismissed on a preliminary objection on 28/7/2005 and the defendant, bearing the burden under Section 107 of the Evidence Act, produced no order reinstating it despite pleading a successful Court of Appeal appeal. The consent and decree of 2012 were therefore recorded in a dismissed suit, a nullity under Macfoy, and all resulting subdivisions and registrations were illegal and void, unprotected by Section 26 of the Land Registration Act. The court entered judgment for the plaintiffs: the parcels were declared void, ordered cancelled and reverted to Nandi/Lelmokwo/123; the Estate awarded 12 acres and the defendant's Estate 6 acres, with the County Surveyor to subdivide respecting both parties' graves, the Deputy Registrar to execute documents, and costs to the plaintiffs.

Key legal issues

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01

Res judicata - whether the prior dismissed suit Eldoret HCCC No. 36/2005 bars this suit

Holding

The suit is not res judicata because the previous suit was dismissed on a preliminary objection and never determined on the merits, and the defendant failed to prove its alleged reinstatement by the Court of Appeal

Reasoning

The Ruling of 28/7/2005 upheld a preliminary objection and dismissed Eldoret Civil Suit 36/2005. Under Section 107 of the Evidence Act the defendant, who pleaded reinstatement by Court of Appeal No. 261/2005, produced no order of reinstatement; even his own advocates were unaware of it. A dismissal without a determination on the merits cannot found a plea of res judicata, so the previous suit could not conclusively determine the parties' rights.

p. 10
02

Validity of the consent of 22/10/2012 and the decree of 26/10/2012 recorded in the dismissed suit

Holding

The consent and decree were recorded in a dismissed suit and are therefore a nullity, and all transactions founded on them (subdivision into 789 and 790 and subsequent registrations) are illegal, null and void

Reasoning

Having found the previous suit dead as at 28/7/2005 with no proof of reinstatement, the consent filed seven years later in 2012 was executed in a vacuum. The advocates who attested it were unaware of both the dismissal and any reinstatement. Applying the principle that an act which is void is a nullity and proceedings founded on it collapse, the court held the decree and the resulting subdivisions and registrations void, and Section 26 of the Land Registration Act does not protect an illegal transaction.

p. 11
03

Whether the plaintiffs proved entitlement to 12 acres of Nandi/Lelmokwo/123

Holding

Yes - the LDT proceedings and decree of 1995 awarding Esther Jelel 12 acres were proved, entitling the Estate to 12 acres upon reversion, with 6 acres to the defendant

Reasoning

The plaintiffs produced the LDT No. 29/1995 proceedings and the subsequent decree, which had been adopted as a judgment of the SRM Court at Kapsabet, awarding Esther Jelel 12 acres and the defendant 6 acres. The nullification of the 2012 consent and decree restored the parties to that position, and the court awarded the Estate 12 acres and the defendant 6 acres with a surveyor-ordered subdivision respecting burial places.

p. 11

Legal principles established

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  • Proceedings taken in a suit already dismissed, without proof of reinstatement, are a nullity founded on nothing
  • The person who alleges the existence of a fact bears the burden of proving it, including reinstatement of a dismissed suit
  • Res judicata requires a prior final judgment rendered on the merits by a court of competent jurisdiction between identical parties, subject matter and cause of action

Court orders

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  1. 1.Declaration that the subdivision and transfer of Nandi/Lelmokwo/123 into Nandi/Lelmokwo/789 (Kibet Ngisirei) and Nandi/Lelmokwo/790 (Esther Jelel) and any subsequent subdivisions is illegal, null and void
  2. 2.The Land Registrar Nandi County to cancel all entries relating to the subdivision and revert the parcels to the original parcel Nandi/Lelmokwo/123
  3. 3.Plaintiffs awarded 12 acres on behalf of the Estate of Esther Jelel and the defendant 6 acres in Nandi/Lelmokwo/123
  4. 4.County Surveyor Nandi County to cause a subdivision of the reverted parcel into 12 acres for the plaintiffs/Estate and 6 acres for the defendant/his Estate, with regard to the burial/resting places of Esther Jelel and Kibet Ngisirei so each remains in the respective parcel
  5. 5.Deputy Registrar of the Court to execute all necessary documents to give effect to the judgment
  6. 6.Costs of the suit awarded to the plaintiffs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land registered under the Land Registration Act (suit on subdivision, registration and title to Nandi/Lelmokwo/123)

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, "Jepkemboi & another (Both Suing as Personal Representatives of the Estate of the Late Esther Jelel – Deceased) v Kipkemboi (Suing as the Administrator of the Estate of the Late Kibet Arap Ngisirei) (Environment & Land Case E004 of 2023) [2024] KEELC 6495 (KLR)", Case Analysis (2024). Not stated in the judgment text (Environment and Land Court suit at Kapsabet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6495/eng@2024-10-03

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