Elizabeth Kisipan Letura v Chrispus Kispan & another [2021] eKLR

Key Facts

Issues

• Whether the 1st Defendant legally acquired the suit land.
• Whether the Plaintiff is entitled to the orders sought in the Plaint.
• Who should bear the costs of the suit.

Holdings

• The court found that the registration of the 1st Defendant as the owner of the suit land was fraudulent.
• The Plaintiff is entitled to exclusive possession and occupation of the suit land.
• The 1st Defendant must transfer the land to the Plaintiff within 90 days.
• The 2nd Defendant must cancel the title deed and register the land in the Plaintiff's name.
• Each party is to bear their own costs due to the family nature of the dispute.

Remedies

• A permanent injunction was issued restraining the 1st Defendant from occupying, trespassing, selling, subdividing, erecting structures, or interfering with the Plaintiff's quiet enjoyment and possession of the land parcel LR No. Kajiado/Lorngusua/1585.
• The 1st Defendant was directed to transfer LR No. Kajiado/Lorngusua/1585 to the Plaintiff within ninety (90) days from the date of the judgement, with the Deputy Registrar empowered to execute the transfer if not complied.
• A declaration was issued that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the parcel of land known as LR No. Kajiado/Lorngusua/1585.
• A declaration was issued stating that the Defendants' actions of registering the 1st Defendant as owner of LR No. Kajiado/Lorngusua/1585 amounted to fraud.
• The 2nd Defendant was directed to cancel and declare null and void the title deed for LR No. Kajiado/Lorngusua/1585 in the name of the 1st Defendant, cancel further entries in the green card, and register the land in the Plaintiff's name.
• Each party was directed to bear their own costs due to the familial nature of the dispute.

Legal Principles

• The court declared the registration fraudulent as the 1st Defendant acted in bad faith, registering the land without consent and disregarding the Plaintiff's longstanding occupation and the deceased's intentions.
• The court emphasized that a registered proprietor challenging a root of title must prove the legality of acquisition beyond the instrument of title. The 1st Defendant failed to demonstrate lawful acquisition, leading to the declaration of fraud.
• The court found an implied customary trust existed because the land was family land allocated by the deceased to the Plaintiff. The 1st Defendant registered the land without consent, and the trust was presumed in favor of the Plaintiff who had occupied the land for over 40 years.

Precedent Name

• Gladys Njeri Muhura V Lispas Wagaturi Muthigiro
• Joseph Segirinya Vs Attorney General
• Isack M'Inanga Kieba Vs Isaaya Theuri M'Lintari & Isack Ntongai M'Lintari
• Felix Mathenge V Kenya Power & Lighting Co. Ltd
• M A Koinange V Joyce Ganchuku & 2 Others
• Munyu Maina Vs Hiram Gathiha Maina

Cited Statute

• Registered Land Act
• Land Registration Act, 2012

Judge Name

Passage Text

• It is against the foregoing that I find the Plaintiff has proved her case on a balance of probability and will proceed to enter judgement in her favour and make the following final orders: a) A declaration... amounts to fraud. b) A declaration... entitled to exclusive and unimpeded right of possession and occupation...
• I find that there is an element of implied customary trust in this instance since the Plaintiff's husband was the owner of the land where the suit land emanated from. Further, the Plaintiff's husband allocated her the suit land but the 1st Defendant only got registered as its proprietor when the Plaintiff who was his stepmother was already residing thereon... I find the same was not only irregular but fraudulent.