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Court of AppealDismissedCivil Appeal (from High Court Civil Suit No. 195 of 1993)· [2007] KECA 84 (KLR)

Obadiah Manasseh Musera v Jelita Makokha Mwechelesi & 1 other

Court of Appeal of Kenya
13 July 2007
ROR.S.C. OmoloEOE.O. O'KubasuWDW.S. Deverell
4,000 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that land obtained through a forged sale agreement must be returned to the rightful owners, and fraud destroys any title protection.

What this practically means

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Executive summary

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The Court of Appeal (Omolo, O'Kubasu and Deverell, JJA) dismissed an appeal against the judgment of Tanui, J in High Court Civil Suit No. 195 of 1993 at Kakamega, in which two widows of the late Mwechelesi Butiya Lusweti had sued Obadiah Manasseh Musera over land parcel Kakamega/Chekalini/84. The trial judge had found that the deceased never sold the land to Angelina Mpapale, that he had entrusted it to her husband, an Assistant Chief, who used his wife to fraudulently sell it, that the alleged 1972 sale agreement drawn by an advocate was a forgery, and that the appellant was not an innocent purchaser; he cancelled the appellant's registration. On appeal, the appellants abandoned the indefeasible-first-registration ground, the court noting the land was previously registered to the Settlement Fund Trustees. The court held that adverse possession could not arise against the Trustees' title by virtue of section 175 of the Agriculture Act, and that the respondents' suit of May 1993 was brought within twelve years of the appellant's October 1992 registration. Applying the established first-appeal standard, the court re-evaluated the evidence, agreed the sale agreement was a forgery, and found the deceased appellant knew or ought to have known of the fraud, being part of the team that fraudulently transferred the land to himself. One co-plaintiff had died without substitution so no order adverse to her estate could be made. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Interference with trial judge's findings of fact on first appeal

Holding

The trial judge's findings that no sale took place and that the sale agreement was a forgery were supported by the evidence; the Court of Appeal, on re-evaluation, wholly agreed.

Reasoning

The court applied the classic first-appeal standard from Peters v Sunday Post, Selle v Associated Motor Boat Co and Ephantus Mwangi v Duncan Mwangi Wambugu. The document alleged to be an advocate-drawn agreement bore a bar's stamp, lacked particulars of the land and price, was completed by one hand, and omitted the seller's identity card number, so the trial judge was entitled to find it a forgery.

p. 8
02

Fraud and bona fide purchaser status

Holding

The deceased appellant either knew or ought to have known the document was a forgery and was part of the fraudulent scheme; he was not a bona fide purchaser for value without notice.

Reasoning

The court relied on suspicious circumstances: the price paid vastly exceeded what Angelina had paid within four years; undated documents bearing suspicious names and a thumb print with the seller's identity card said to be 'lost'; same-day land control consent; and failure to take the seller and his wives to the Settlement Fund Trustees' offices as was the practice.

p. 8
03

Indefeasibility of first registration

Holding

Ground one, claiming indefeasible first registration, was rightly abandoned because the deceased appellant's registration followed an earlier registration of the land in the name of the Settlement Fund Trustees.

Reasoning

The title deed showed the land had been registered in the name of the Settlement Fund Trustees before the deceased appellant was registered as proprietor on 14th October 1992, so his registration was not a first registration.

p. 6
04

Adverse possession against Settlement Fund Trustees' land

Holding

Adverse possession could not be raised against the land while it belonged to the Settlement Fund Trustees, because section 175 of the Agriculture Act bars limitation defences to the Trustees' suits; the claim accordingly failed.

Reasoning

The land remained registered to the Settlement Fund Trustees until 14th October 1992. Section 175 of the Agriculture Act (Cap 318) provides that no suit, application or proceeding by the Settlement Fund Trustees is barred by limitation. The respondents filed suit on 18th May 1993, within twelve years of the appellant's registration, so no adverse possession claim could arise either way.

p. 6

Legal principles established

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  • Where a trial judge has made clear and unequivocal findings of fact, an appellate court on first appeal must be very slow to interfere unless there was no evidence to support the findings or the judge misapprehended the evidence and reached an unsupportable conclusion.
  • An appellate court will not normally interfere with a finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or on demonstrably wrong principles.
  • A first registration obtained through fraud is not protected as an indefeasible first registration where, as here, the land was previously registered in the name of the Settlement Fund Trustees; moreover the appellants abandoned that ground.
  • Under section 175 of the Agriculture Act, no suit or proceeding by the Settlement Fund Trustees is barred by limitation, so no adverse possession could be run against the Settlement Fund Trustees' title to settlement land.
  • Where a co-respondent died and was never substituted, the appeal against her abated and the court cannot make any order adverse to the interest of her estate.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondent
On appeal from
High Court of Kenya at Kakamega
H.C.C.C. No. 195 of 1993
Jurisdiction invoked
First appeal to the Court of Appeal under the Appellate jurisdiction exercised on appeal from the High Court (the judgment records 'though this is a first appeal to us'); no specific constitutional provision stated.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Obadiah Manasseh Musera v Jelita Makokha Mwechelesi & 1 other", Case Analysis (2007). Civil Appeal (from High Court Civil Suit No. 195 of 1993). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/84/eng@2007-07-13

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