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ELCPartially AllowedELC Case No. 472 of 2016 (consolidated with Nakuru ELCC 54 of 2020, formerly CMELC No. 106 of 2018)· [2024] KEELC 6651 (KLR)

Lasoi (Suing as the administrator of the Estate of Solomon Kipkorir Arap Lasoi) & 2 others v Cheruiyot & 10 others (Environment & Land Case 472 of 2016 & 54 of 2020 (Consolidated)) [2024] KEELC 6651 (KLR)

Environment and Land Court
11 October 2024
7,309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles sold through unlicensed agents under an abused power of attorney, confirming buyers must verify registered transfers before relying on a title deed.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Nakuru (M. A. Odeny, J) resolves consolidated land disputes over Nakuru/Olenguruone/Cheptuech/269, a 14-hectare parcel registered in the name of the late Solomon Kipkorir Arap Soi. The 1st plaintiff, widow and administrator of the estate, had granted the 1st defendant a specific power of attorney to sell the suit property. The court held that the 1st defendant acted ultra vires by engaging the 2nd and 3rd defendants - who were not registered estate agents under section 18 of the Estate Agents Act - to sell the land to recover an alleged commission, without the donor's knowledge or ratification. The resulting transactions were held illegal, null and void. The 4th to 7th defendants' titles, allegedly issued on 7th November 2016, were found irregular: the transfer forms were undated, unregistered and unstamped, no entries appeared in the green card, the government caveat over the Mau complex had not been lifted, and no valid land control board consent existed. The 6th defendant failed to establish innocent purchaser status. Fraud claims for punitive and exemplary damages and damages for trespass were not granted, the court finding no proof of loss of use since the 6th defendant had herself utilised the land. The court granted the plaintiffs an injunction, vacant possession within 45 days failing which eviction would issue, cancellation of the defendants' titles, release of the original title, and an order that the 1st defendant render accounts, with costs. Caroline Chebet's consolidated suit in ELCC 54 of 2020 was dismissed with costs.

Key legal issues

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01

Whether the 1st defendant acted within the specific power of attorney donated to him

Holding

The 1st defendant acted ultra vires and beyond his mandate by engaging the 2nd and 3rd defendants to sell the suit land to recover their commission without the plaintiff's authority or ratification

Reasoning

The specific power of attorney of 11th December 2004 authorised the 1st defendant to sell the suit property to a willing buyer and execute transfer documents. It did not empower him to offer the land as security for commission to agents the plaintiff had not contracted, nor to enter a sale agreement with the agents without the donor's knowledge or ratification. He also failed to render accounts, breaching his duty of good faith to the donor.

p. 11
02

Whether the 2nd and 3rd defendants were lawful estate agents

Holding

The agency was illegal as the 2nd and 3rd defendants were not registered estate agents under section 18 of the Estate Agents Act Cap 533

Reasoning

Transactions in land are sensitive and must be conducted by recognised personnel and institutions. The 3rd defendant confirmed in cross-examination that he is not a registered estate agent and holds no licence. The agency agreement and the subsequent agreement to sell the suit land to recover commission were founded on this illegality and could not be enforced by the court.

p. 11
03

Whether the 4th to 7th defendants hold valid title

Holding

No valid title: the transfers were executed during a government caveat on the Mau complex, were neither dated nor registered, no entries appear in the green card, and no valid land control board consent existed

Reasoning

The Land Registrar testified that the transfer forms were undated, unregistered, unstamped and that the defendants' titles dated 7th November 2016 could not be traced in the green card. The caveat on the Mau complex had not been lifted when the titles were allegedly issued, and no evidence of a partial lift in 2016 was produced. The property, registered in a deceased person's name, was transferred directly without transmission to the administrator.

p. 13
04

Whether the 6th defendant was an innocent purchaser for value without notice

Holding

She did not qualify as an innocent purchaser; she admitted the transfer was to be dated upon registration and that no registered transfer existed

Reasoning

She did not appear before the Land Control Board, could not produce a gazette notice lifting the caveat, was unable to conduct a search due to the caveat, and heard the Land Registrar testify that the defendants were not registered as owners. Her possession of the land since 2017 did not cure the defective root of title.

p. 7
05

Whether claims for loss of use and trespass damages were proved

Holding

The claim failed; the plaintiff produced no evidence of loss of use and the 6th defendant admitted she had been utilising the land herself

Reasoning

The 6th defendant testified that she had been grazing cattle and planting maize and potatoes harvested since 2017, meaning she suffered no loss of use. The plaintiff, on the other hand, adduced no evidence of her own loss of use, so damages for trespass were not proved by either side.

p. 13

Legal principles established

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  • A donee of a power of attorney must act in good faith and within the limits of the authority granted; acting beyond the mandate renders the transactions null and void
  • Courts will not enforce or validate illegal transactions, including contracts made through unregistered estate agents contrary to section 18 of the Estate Agents Act

Court orders

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  1. 1.An injunction issued against the defendants from advertising or selling the property known as Title Nakuru/Olenguruone/Cheptuech/269
  2. 2.The 3rd to the 7th Defendants to give vacant possession of the suit land within 45 days, failure to which eviction to issue
  3. 3.Cancellation of the titles held by the 4th, 5th, 6th and 7th defendants and the 2nd and 3rd Defendants to release the original title to the plaintiff
  4. 4.The 1st defendant to render an account of all his dealings under the power of attorney granted to him by the 1st plaintiff
  5. 5.Costs of the suit to the plaintiffs in ELC No. 472 of 2016
  6. 6.The plaintiff Caroline Chebet's suit in Nakuru ELCC 54 of 2020 dismissed with costs

Authorities

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Legislation

  • Estate Agents ActSections 2 and 18, Cap 533
  • Land Registration ActSections 37, 40 and 43(2)
  • Evidence ActSections 107(1), 109 and 112, Cap 80
  • Registration of Titles Act (repealed)Section 51, Cap 281

Cases cited (16)

  • Mapis Investment (K) Limited v Kenya Railways Corporation
    [2006] eKLR
  • Mike Munga Mbuvi vs Kenya Airways Limited
    [2017] eKLR
  • Macfoy vs United Africa Co Ltd
    (1961) 3 All ER 1169
  • Regional Institute of Business Management vs Ondong
    (Civil Appeal 420 of 2019) [2023] KEHC 23228 (KLR)
  • Alberta Mae Gacci vs Attorney General & 4 Others
    (2006) eKLR
  • Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura vs Attorney General & 4 Others
    [2017] eKLR
  • Duncan Nderitu Ndegwa vs KP& LC Limited & Another
    (2013) eKLR
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR
  • Stelco Properties Limited & another v Njugi Ventures Limited & another
    [2021] eKLR
  • Mayfair Holdings Ltd vs Ahmed
    [1990] eKLR
  • Suraj Lamp & Industries Pvt. Ltd vs State of Haryana & Another
    (Special leave Petition (c) No 13917 of 2009)
  • CCB v MIB & another
    [2014] eKLR
  • Scott vs Brown Doering, Mcnab & Co.
    [1992] 2 QB 724
  • Anne Wambui Nderitu vs Joseph Kiprono Rapkoi & Another
    [2005] IEA 334
  • Vijay Morjaria Vs Nansingh, Madhusingh Darbar & another
    [2000] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (consolidated suits)

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, "Lasoi (Suing as the administrator of the Estate of Solomon Kipkorir Arap Lasoi) & 2 others v Cheruiyot & 10 others (Environment & Land Case 472 of 2016 & 54 of 2020 (Consolidated)) [2024] KEELC 6651 (KLR)", Case Analysis (2024). ELC Case No. 472 of 2016 (consolidated with Nakuru ELCC 54 of 2020, formerly CMELC No. 106 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6651/eng@2024-10-11

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