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High CourtDismissedKericho CMELC Case Number 19 of 2018 (Appeal)· [2020] KEHC 2954 (KLR)

Kericho CMELC Appeal (Appellant v Avtar Singh Bhachu & another)

High Court of Kenya
30 July 2020
4,546 words in judgment
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·~18 min to read original · ~4 min brief

The bottom line

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A later land claim cannot succeed if the property was already legally allocated to a previous owner.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Kericho (J.M Onyango, J) against the judgment of Hon S.K Mokua (Chief Magistrate) dated 29 January 2019 in Kericho CMELC Case Number 19 of 2018, which dismissed the Appellant's claim and allowed the Respondent's counterclaim. The Appellant claimed to be the registered proprietor of Kericho Municipality Block 5/388, having received it as a gift from his father (the Interested Party) in 1999, and sued for injunction, damages, mesne profits and a declaration of ownership after the Respondent allegedly stopped his construction of a teachers' college in 2012. The Respondent, holding grant I.R 68985 issued on 23 April 1996 in the name of Safari Motors Services, asserted he bought the land from the original allottee Johnstone Makori (allotted in 1979) and alleged the Appellant's title was a forgery. The High Court, applying the first-appeal standard in Selle v Associated Motor Boat Company Ltd, framed three issues: fraud, proprietorship, and costs. It held that fraud must be distinctly pleaded and proved, that the 1979 first allotment rendered the land unavailable for the Interested Party's 1991 allotment, and that the Respondent's 1996 first registration vested absolute ownership under sections 24 and 26 of the Land Registration Act. The Appellant's title was found fraudulent and unprocedural. The appeal was dismissed with costs to the Respondents on 30 July 2020.

Key legal issues

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01

Whether the Appellant acquired his title through fraudulent means

Holding

Yes - the Appellant's title was obtained by fraud and unprocedurally because the land had already been alienated to Johnstone Makori, who sold it to the Respondent.

Reasoning

The first allotment letter was issued to Johnstone Makori in 1979 and never cancelled; the land was therefore unavailable for alienation to the Interested Party in 1991. The Respondent obtained grant I.R 68985 in 1996, a first registration vesting absolute ownership under section 24 of the Land Registration Act. The Appellant's later title could not defeat it.

p. 6
02

Who is the legal proprietor of the suit property

Holding

The Respondent and his partners (Safari Motors Services) hold the valid, first-in-time title.

Reasoning

The Respondent's chain began with the 1979 allotment to Johnstone Makori and a 1996 grant I.R 68985. The Interested Party's 1991 allotment letter was issued over land already alienated. The land registry records were unhelpful and files missing, but the principle of first allocation prevailed.

p. 5

Legal principles established

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  • Fraud must be specifically pleaded and distinctly proved; it cannot be inferred from the facts.
  • Where land has already been alienated to a first allottee, a later allotment of the same parcel confers no valid title; the first in time prevails.
  • Registration under section 24 of the Land Registration Act vests absolute ownership in the proprietor.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents.

Authorities

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Legislation

  • Criminal Procedure Codesection 210
  • Land Registration Actsection 24; section 26
  • Registration of Titles Act (Cap 281)
  • Registered Land Act (Cap 300)
  • Constitution of Kenya 2010Article 40

Cases cited (15)

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    (2015)

    Appellant's submission on fraud and registration

  • Mbau Saw Mills Ltd v Attorney General for and on behalf of the Commissioner of Lands & 2 others
    (2014) eKLR

    Conditions of allotment letters

  • Abdia Dabaso v Sangab Kalicha Huka
    (2019) eKLR

    Evidence of compliance with allotment conditions

  • Daudi Kiptugen vs Commissioner for Lands and 4 others

    Weight of a letter of allotment

  • Faraj Maharus vs J.B Martin Glass Industries and 3 Others
    C.A 130/2003 (unreported)

    Land already alienated cannot be re-allotted

  • Benja Properties Limited vs Syedna Mohammed Burhannudin Sahed & 4 others
    (2015) eKLR

    Second title issued after a valid first title is challengeable

  • Selle v Associated Motor Boat Company Ltd
    [1968] E.A. 123, 126

    Duty of first appellate court to re-evaluate evidence

  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR

    Fraud must be distinctly pleaded and proved

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR (Civil Appeal No. 106 of 2000)

    Fraud cannot be inferred from facts

  • Solomon Omwega Omache & another –v- Zackery O. Ayieko & 2 others
    (2016) eKLR

    Sanctity of the record at the Lands office

  • Swaleh Mohamed Waziri & 3 others v Houd Mohmoud Athman & another
    [2020] eKLR

    Double allocation - first allotment prevails

  • M’Ikiara M’Rinkanya and Another vs Gilbert Kabeere M’Mbijiwe
    [1982 – 1988] 1 KAR 196

    No power to allocate the same property again without re-allocation procedure

  • Kenya Ihenya Company Limited & another vs Njeri Kiribi
    [2019] eKLR

    First in time is the bona fide proprietor in double allocation

  • Gitwany Investment Limited -v- Tajmal Limited & 2 Others
    (2006) eKLR

    First grant takes priority; first in time prevails

  • Wreck Motors Enterprises v Commissioner of Lands
    Civil Appeal No. 71 of 1997 (Unreported)

    The earlier grant takes priority - land already alienated

On appeal from
Chief Magistrate's Court, Kericho
Kericho CMELC Case Number 19 of 2018
Jurisdiction invoked
First appeal from the Chief Magistrate's Court (Environment and Land jurisdiction)

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, "Kericho CMELC Appeal (Appellant v Avtar Singh Bhachu & another)", Case Analysis (2020). Kericho CMELC Case Number 19 of 2018 (Appeal). Source: 

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