Cheruiyot v Bartiony [1988] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a registered landowner is entitled to possession even where the eviction procedure was flawed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court erred in law in failing to appreciate that the respondent's counterclaim for eviction had been dismissed and no appeal was preferred against that dismissal
- 2.Whether, once the respondent's counterclaim was dismissed and unappealed, the matter became res judicata so that eviction of the appellant was wrongly ordered
Key legal issues
#Whether the unappealed dismissal of the respondent's counterclaim for eviction rendered the subsequent eviction of the appellant wrongful and the matter res judicata
No. The substance was the contest of title, which was finally determined in the respondent's favour by the High Court; the failure of the High Court to reverse the magistrate's dismissal of the counterclaim did not affect the legal position, since possession is a necessary incident of registered ownership.
The court held that the real issue between the parties before the magistrate was who was the rightful owner of the suit land. That issue was decided adversely to the appellant by the High Court, which held the sale void under the Land Control legislation, and that holding was not appealed. As registered proprietor under the Registered Land Act, the respondent's absolute ownership carries the right to possession against the whole world. The omitted reversal of the dismissal of the counterclaim was a procedural omission that could not defeat the substantive right of the owner to possession.
Effect of registration under the Registered Land Act (Cap 300)
Registration vests absolute ownership together with all appurtenant rights and privileges, one of which is the right to possession.
Section 27 of the Registered Land Act (Cap 300) provides that registration of a person as proprietor vests absolute ownership of the land with all rights and privileges appurtenant thereto. The court characterised the right to possession as one of the acknowledged rights of ownership, so the registered proprietor was entitled to recover exclusive possession from the appellant notwithstanding that title had originally passed to the appellant pursuant to the (now void) sale and the transfer order that was later reversed on registration.
Propriety of the ex parte chamber summons procedure used to obtain eviction
The procedure was wrong; the application should have been made on notice with the appellant afforded an opportunity to be heard, but the point became barren in the circumstances.
The court accepted that the eviction application ought to have been made on notice and that the ex parte procedure was improper. Platt JA in a separate opinion expressly disapproved of it and hoped it would never be followed again. However, the majority excused the procedural defect because the High Court's own omission to order eviction when it determined title gave rise to the respondent's mistake, and the substance of registered proprietorship could not be defeated by procedural accuracy.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership in that person, including the right to possession against the whole world.
- A sale of agricultural land becomes void for all purposes where Land Control Board consent is not obtained within the three months prescribed by statute.
- A determination of ownership that stands unappealed is res judicata against the party against whom it was decided, and the successful owner is entitled to possession as a necessary incident of ownership notwithstanding an unvaried order dismissing an eviction counterclaim.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to vacate the suit land and give possession to the respondent six months from the date of judgment
- 3.Costs ordered against the appellant in favour of the respondent (per the majority, though Platt JA ordered each party to bear its own costs - see dataQualityFlags)
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
Platt JA agreed that the appeal should be dismissed on the substance of registered title, but disapproved of the ex parte eviction procedure, refused to award costs to the respondent, and would have ordered each party to bear its own costs.
I do not approve of the procedure adopted, of taking an ex-parte application for eviction to put the High Court’s omission right. I hope it is never followed again.p. 4
Wrote the judgment
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Second appeal to the Court of Appeal on questions of law (no specific constitutional or statutory provision stated in the judgment)
Relief refused
#Appellant's appeal against the affirmation of his eviction
The issue of ownership was conclusively decided in the respondent's favour by the High Court and was not appealed; the registered proprietor is entitled to possession as an incident of ownership.
Costs
Appeal dismissed with costs (per Apaloo JA, with Masime Ag JA agreeing); Platt JA would have ordered 'the parties to bear their own costs'. The judgment concludes 'As Apaloo JA and Masime Ag JA agree it is so ordered.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In my opinion, the concurrent holdings of the two Courts below were right and should be affirmed. I would dismiss this appeal with costs and order that the appellant vacate the suit land and give possession to the respondent six months from today.
I agree that this appeal should be dismissed with costs and that the resondent be ordered to vacate the suit land within six months from the date of this judgment.
I would order the parties to bear their own costs.
The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all the rights and privileges belonging or appurtenant thereto.
The question, who was the rightful owner of the suit land was decided adversely to the appellant in the High Court.
Issues in the judgment
#The judgment contains an unresolved conflict on the costs order: Apaloo JA and Masime Ag JA dismissed the appeal 'with costs', while Platt JA's separate opinion ordered that each party bear its own costs; the closing words 'As Apaloo JA and Masime Ag JA agree it is so ordered' purport to adopt Platt's costs order even though Masime Ag JA had just stated 'with costs'.
Masime Ag JA's concurring judgment states that 'the resondent be ordered to vacate the suit land within six months', reversing the parties; the clear intent from Apaloo JA's judgment is that the appellant was to vacate and give possession to the respondent.
The opening of the plaint narrative states the appellant 'prayed for judgment against the appellant' when the plaintiff in the magistrate's court was the appellant; this appears to be a typographical error in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Bartiony [1988] KECA 134 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/134/eng@1988-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.