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ELCPartially AllowedNot stated in excerpt· [2024] KEELC 7011 (KLR)

Kilongu alias Ipite Ole Kiloku (Chairman) & 2 others v Sanoe (Chairman) & 10 others (Environment & Land Case 39 of 2020) [2024] KEELC 7011 (KLR)

Environment and Land Court
16 October 2024
4,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled fraudulently obtained title deeds, restoring land to trustees who must hold it for community beneficiaries.

What this practically means

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Executive summary

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The Plaintiffs, members of self-help groups claiming to represent Maasai community beneficiaries, sued eleven Defendants over land parcels Maela/Ndabibi Block 5/2253 and 5/3073. They sought declarations of beneficiary status, rectification of the register, cancellation of title deeds, registration of the titles in the names of seventeen named persons to hold in trust, an injunction, general damages and costs. The claim was anchored on the judgment in Nakuru H.C.C.C No. 89 of 1996 (as appealed in Civil Appeal No. 64 of 2004), under which the seventeen defendants were awarded the land by adverse possession to hold in trust for themselves and approximately 3,000 Maasai beneficiaries. The Plaintiffs contended that the 1st to 6th Defendants fraudulently registered the parcels in their own names in equal shares, circumventing those judgments. The 1st to 6th Defendants denied fraud, asserting a meeting of 30th January 2015 resolved they hold the land in trust for 601 members, and argued the suit sought fresh directions on an executed decree. The 7th to 11th Defendants denied fraud was proved against them, noting the Land Registrar had no parcel files for the suit titles. Applying the strict standard of proof for fraud from Koinange v Charles Karuga Koinange, the court found the 1st to 6th Defendants produced no minutes of the alleged 2015 meeting and that they fraudulently transferred the titles. The court declared the 1st Plaintiff a beneficiary, ordered rectification of the register, cancellation of the titles, and that new title deeds issue to the seventeen defendants of HCCC 89 of 1996 to hold in trust, with costs to the Plaintiffs against the 1st to 6th Defendants.

Key legal issues

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01

Beneficiary status of the Plaintiffs over Maela/Ndabibi Block 5/2253 and 3073

Holding

Only the 1st Plaintiff proved beneficiary status; the 2nd to 6th Plaintiffs' proof was equivocal though the court later states they proved it

Reasoning

The court traced the award in Nakuru HCCC 89 of 1996 and Civil Appeal 64 of 2004, under which the seventeen defendants were to hold the land in trust for themselves and about 3,000 Maasai beneficiaries. Measuring the plaintiffs against the parties and beneficiaries in those decisions, the court found the 1st Plaintiff proved beneficiary status while the position of the others was less clear.

p. 7
02

Fraud in the registration of the titles in the names of the 1st to 6th Defendants

Holding

Fraud proved to the required standard; the 1st to 6th Defendants fraudulently transferred the titles, having produced no minutes of the alleged 30th January 2015 meeting

Reasoning

The court applied the strict standard of proof for fraud from Koinange v Charles Karuga Koinange. The 1st to 6th Defendants claimed registration followed a meeting of 30th January 2015 resolving that they hold the land in trust for 601 members, but they produced no minutes of that meeting. Their registration of the parcels in their own names in equal shares circumvented the judgment in HCCC 89 of 1996.

p. 8
03

Costs of the suit

Holding

Costs awarded to the Plaintiffs against the 1st to 6th Defendants

Reasoning

Relying on Section 27(1) of the Civil Procedure Act and the Party of Independent Candidate of Kenya v Mutula Kilonzo principle, the court held that costs follow the event and that no good grounds existed to depart from awarding costs to the successful Plaintiffs.

p. 9

Legal principles established

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  • Allegations of fraud must be strictly proved; the standard is higher than a mere balance of probabilities
  • The burden of proving fraud lies on the plaintiff alleging it
  • Costs follow the event and are awarded to the successful party absent good grounds

Court orders

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  1. 1.A declaration is hereby issued that the 1st Plaintiff is a beneficiary of Land Parcels Maela/Ndabibi Block 5/2253 and 3073
  2. 2.The Register in respect of land parcel Maela/Ndabibi Block 5/2253 and 3073 be rectified and the issued title deeds be cancelled
  3. 3.Title Deeds to land parcel Maela/Ndabibi Block 5/2253 and 3073 be issued to the 17 Defendants vide H.C.C.C 89 of 1996 to hold in trust of themselves and all the beneficiaries
  4. 4.Cost of the suit and interest thereof at court rates awarded to the Plaintiffs against the 1st to 6th Defendants

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Civil Procedure ActSection 27(1)
  • Civil Procedure ActSection 34(1)
  • Evidence ActSection 109

Cases cited (15)

  • Munyu Maina vs Hiram Gathiha Maina
    Civil Appeal No 239 of 2009
  • David Peterson Kiengo & 2 others vs Kariuki Thuo
    [2012] eKLR
  • Alice Chemutai Too vs Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Republic v Rosemary Wairimu Munene (Ex parte Applicant) v Ihururu Dairy Farmers Co-operative Society Ltd
    Judicial Review Application No 6 of 2004
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    [2014] eKLR
  • Charles Ngare Karaya vs Florence Muthoni & Sarah Njoki Munge t/a Sanjomu Auctioneers
    Nakuru H.C.C.C No 28 of 2017
  • James W. I Munyo & 3 others vs Karanja Mbugua & Co Advocates and Another
    Nakuru H.C.C.C No 357 of 2012
  • Esther Njeri Mwangi (Suing as the administrator of the Estate of Mwangi Muhoro) vs Arthur Wambugu
    Nakuru E.L.C No 22 of 2023
  • Charterhouse Bank Limited (under statutory management) vs Frank Kamau
    [2016] eKLR
  • Mbuthia Macharia vs Annah Mutua Ndwiga & another
    [2017] eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Koinange & 13 others vs Charles Karuga Koinange
    1986 KLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    [2013] eKLR
  • Ngai Farmers Co-operative Society Ltd vs Cllr John Ledidi & others
    Nakuru H.C.C.C No 89 of 1996
  • Ngati Farmers Co-operative Society (appeal)
    Nakuru Civil Appeal No 64 of 2004
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels Maela/Ndabibi Block 5/2253 and 3073

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, "Kilongu alias Ipite Ole Kiloku (Chairman) & 2 others v Sanoe (Chairman) & 10 others (Environment & Land Case 39 of 2020) [2024] KEELC 7011 (KLR)", Case Analysis (2024). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7011/eng@2024-10-16

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