Madede & another v Fita & 2 others (Civil Appeal 4 of 1986) [1988] KECA 108 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed sons' land claim, confirming you cannot revive lost ownership disputes through new suits or trust claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether plots Bunyala/Namirama/195 and 196 are held by the respondents as trustees, including constructive trustees, for the appellants under Luhya customary law
- 2.Whether the suit is barred by res judicata having regard to the earlier African Court and African Court of Appeal decisions and the Land Adjudication proceedings
- 3.Whether the appellants, as sons of the second respondent, are privies bound by the earlier decisions
- 4.Whether the claim is barred by limitation under section 7 of the Limitation of Actions Act
Key legal issues
#Whether a customary-law trust or constructive trust arose in favour of the appellants
No trust arose. The father never possessed the disputed land, the first respondent never held it in trust, and no fiduciary relationship existed between the appellants and the first respondent.
The court held that under Luhya customary law a father cannot disinherit his children, but inheritance presupposes that the father possessed the land at death. Ayub Wasike had lost the land to Ainea Fita in litigation in 1947, 1958 and in the adjudication proceedings, so the appellants could not claim through him. No purchase money was provided by the appellants and no fiduciary position was exploited, so neither a resulting nor a constructive trust could be imposed.
Whether the suit was res judicata
Yes. The ownership of plot 196 was finally determined by the Kakamega African Court of Appeal in 1957, and the appellants themselves contested it before the Land Adjudication Committee in case No 38/67.
Section 7 of the Civil Procedure Act bars suits where the matter was directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title. The appellants claimed through their father Ayub, who litigated the same land and lost; they were privies in blood and were themselves parties to the adjudication proceedings. A claim of trust could not circumvent the prior determination of ownership.
The collusive nature of the suit
The suit against the second respondent (the appellants' father) was collusive; his true role was that of a plaintiff procuring his sons to re-litigate title he had lost.
Apaloo JA found that Ayub had fought the first respondent over the identical land in 1947, 1958 and in adjudication, and would have faced an unanswerable res judicata plea if he had sued himself. His advocate readily conceded the appeal, and his daughter testified he had filed the suit. The inclusion of plot 195, to which the respondents disclaimed interest, was a red herring; the real object was plot 196.
Limitation
Though not argued, a claim to land must be brought within 12 years under section 7 of the Limitation of Actions Act; pleading the claim as one of trust to avoid limitation could not save it once the trust claim failed.
The court observed sua sponte that section 7 of the Limitation of Actions Act (cap 22) bars suits on land after 12 years. The appellants had pleaded trust to escape that bar, but since the trust claim failed, the limitation position was unfavourable to them.
Legal principles established
#- For children to inherit their father's land under customary law, the father must have been in possession of the land at the time of his death; a fiduciary or trust relationship between father and sons presupposes the father's possession of the land.
- A party claiming land from a registered proprietor after first registration must show that the proprietor holds it in trust under the proviso to section 28 or section 126 of the Registered Land Act (cap 300).
- The determination of ownership by a competent court bars a subsequent suit over the same land by the same parties or their privies, including heirs claiming through a former litigant; estoppel binds not only parties but their privies.
- A suit collusively framed to have a party who would be met by res judicata appear as a defendant is a device that the court will see through.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 1st and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment. Held that any fiduciary relationship depends on the father being possessed of the land; the first respondent never held the land in trust for the second respondent or the appellants, and the question of ownership was finally determined by the Kakamega African Court of Appeal in 1957, so the suit was barred by res judicata. The appeal was dismissed with costs.
It is my view, that the learned judge was right in dismissing the appellant's claim. Equally the same, I would dismiss this appeal with costs to the 1st and 3rd respondents.p. 7
Wrote the judgment
Wrote a separate concurring judgment reaching the same conclusion. Analysed the history of the dispute from 1947 onwards, found the suit collusive - a device by Ayub Wasike to re-agitate through his sons title he had consistently lost - held the appellants bound as privies in blood and as parties to the Land Adjudication Committee case, and found no constructive trust in favour of the appellants.
I have reached the same conclusion as Gachuhi JA.
Wrote the judgment
Briefly concurred with the other judgments and with dismissal of the appeal with costs.
I agree. The result, therefore, is that the appeal is dismissed with costs.p. 10
- On appeal from
- High Court of Kenya at Kakamega
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (not expressly stated in the judgment)
Relief refused
#Declaration that plots 195 and 196 are held by the respondents in trust for themselves and the appellants in equal shares
No trust, fiduciary relationship or constructive trust was established; the claim was also barred by res judicata and limitation
Costs
Appeal dismissed with costs to the 1st and 3rd respondents
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.
I agree. The result, therefore, is that the appeal is dismissed with costs.
It is my view, that the learned judge was right in dismissing the appellant's claim. Equally the same, I would dismiss this appeal with costs to the 1st and 3rd respondents.
In order for the children to inherit their father's land, the father must be in possession of the land at the time of his death.
On the principle of res judicata the issue of ownership in a subsequent suit as in the instant case could not be raised.
It is a platitude that estoppel binds not only parties but their privies as well.
There is no warrant for the contention that the respondents hold the legal title in plot 196 as "constructive trustees" for the appellants. It is plain to me that they hold it as beneficial owners and in their own right.
Issues in the judgment
#The second respondent is described as the father of the appellants (Ayub Wasike), but it is also recorded that he died during the pendency of the suit and was substituted by his wife; the substitution is stated only in Apaloo JA's judgment, not in Gachuhi JA's, which refers to the second respondent as still defending.
The case number and neutral citation of this appeal are not stated anywhere in the judgment as provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Madede & another v Fita & 2 others (Civil Appeal 4 of 1986) [1988] KECA 108 (KLR)", Case Analysis (1988). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/108/eng@1988-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.