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ELCPartially AllowedEldoret High Court Civil Case No. 910 of 2012 (E & L Division)· [2018] KEELC 164 (KLR)

Some Arap Kirorei v Barnabas Kiplimo Kogo & 2 others [2018] KEELC 164 (KLR)

High Court of Kenya
21 December 2018
AOA. Ombwayo
4,701 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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A registered Kenyan title holder won eviction of long-term occupants because their family land sale was never completed or legally approved.

What this practically means

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Executive summary

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The plaintiff, Some Arap Kirorei, sued Barnaba Kiplimo Kogo (his nephew), Patrick Tawai and Adson Wemali Omuyonga claiming to be the registered owner of land parcel NANDI/SOIMINING/279 measuring 3.6 Ha. He sought eviction of the defendants, a permanent injunction restraining any dealing with the parcel, and mesne profits from 2007. The defendants pleaded that the land was purchased in the 1970s by the 1st defendant's late foster mother, Regina Jerono alias Fatuma Jerono, from the plaintiff though never transferred, and that the 2nd and 3rd defendants bought portions from the 1st defendant. At trial, the plaintiff and his brothers (PW2 and PW3) testified that Regina only cared for the land on the plaintiff's behalf, and that the 1st defendant, given to Regina as a young child under Nandi custom, had no interest in parcel 279. The 1st defendant produced an old sale agreement (DEX1) showing a balance of Kshs. 2,540 and claimed occupation since 1987. The court held that parties are bound by their pleadings; no counterclaim for adverse possession was filed and no trust was alleged. It found the sale agreement unproven against the plaintiff, with no Land Control Board consent and no transfer. The plaintiff, holding a certificate of title with no evidence of fraud or illegality, proved ownership on a balance of probabilities. Eviction and permanent injunction issued, with 30 days' notice required before eviction. Mesne profits were refused for want of proof, and no costs were ordered given the family dispute. Judgment delivered at Eldoret on 21st December 2018 by A. Ombwayo, J.

Key legal issues

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01

Whether the plaintiff's registered title to NANDI/SOIMINING/279 stands

Holding

The plaintiff is the absolute and indefeasible registered proprietor; the suit land belongs to him

Reasoning

The plaintiff produced his certificate of title. The alleged sale to the late Regina Jerono was not proved: the agreement DEX1 does not clearly implicate the plaintiff, there was no Land Control Board consent and no transfer was effected. First registration could only be defeated by fraud or trust, neither of which was established. The court credited the evidence of PW1, PW2 and PW3.

p. 5
02

Whether the defendants could rely on adverse possession or a trust

Holding

No; neither was pleaded, so the court did not consider them

Reasoning

The defendants never filed a counterclaim for adverse possession and did not plead the Limitation of Actions Act or allege the plaintiff held the land in trust. Parties are bound by their pleadings, so the court confined itself to the pleaded defence that the land was purchased by the 1st defendant's late mother.

p. 4
03

Whether the sale agreement relied on by the 1st defendant passed title

Holding

It did not; it was unclear and lacked statutory consent and transfer

Reasoning

The agreement DEX1 was executed between Maurice Some Kirorei and the deceased, and it is not clear the plaintiff was a party. No application was made for Land Control Board consent as required by law, and no transfer of the suit land to Regina Jerono was ever effected, so no interest passed to the 1st defendant.

p. 5

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership, and a registered title is indefeasible except on proof of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
  • An alleged sale of agricultural land without Land Control Board consent cannot pass title
  • Parties are bound by their pleadings; a defence not pleaded cannot be relied upon

Court orders

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  1. 1.An order of eviction against the defendants and their agents, servants, workers and/or relatives from Land Parcel Number NANDI/SOIMINING/279
  2. 2.The plaintiff to give a notice of 30 days before carrying out any eviction
  3. 3.Permanent orders of injunction against all the defendants and their agents, servants, workers and/or any other person and/or relative from working, claiming or undertaking any dealing in NANDI/SOIMINING/279
  4. 4.No order as to costs

Authorities

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Legislation

  • Land Registration Actsection 24
  • Land Registration Actsection 25(1)
  • Land Registration Actsection 26
  • Limitation of Actions Act
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Division) over a land dispute

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, "Some Arap Kirorei v Barnabas Kiplimo Kogo & 2 others [2018] KEELC 164 (KLR)", Case Analysis (2018). Eldoret High Court Civil Case No. 910 of 2012 (E & L Division). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/164/eng@2018-12-21

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