John Baraza Ojiambo v Veronica Auma Ojiambo
The bottom line
#The Court of Appeal ruled that family members occupying land for decades can claim it through customary trust, even without proving adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents proved adverse possession of the whole suit land
No. Adverse possession was not proved; the respondents were in actual possession of only about ten acres, not the entire suit land, and the trial judge erred in failing to consider the appellant's occupation of three acres.
The court re-appraised the evidence as a first appellate court. The respondents admitted actual possession of about ten acres while the appellant occupied three acres at the edge. Adverse possession must encompass actual possession of the whole claimed parcel. The trial judge's brief judgment failed to interrogate whether occupation was consensual, given family relationships, and did not consider the effect of the appellant's own occupation on the claim.
Whether the appellant held part of the suit land in trust for the respondents under customary law
Yes. The facts proved on a balance of probabilities that the appellant held the ten acres the respondents occupy in trust for them, even though the trust was not pleaded and was not noted on the register.
The suit land was family land originally belonging to the deceased. The registration particulars of other parcels showed none of the deceased's sons received more than three hectares except the appellant, who held about 10.6 hectares. The respondents occupied the land during and after the deceased's lifetime for 28 years. Relying on Odd Jobs v Mubia and the proviso to Section 28 of the Registered Land Act, the court enforced the customary trust despite it not being pleaded or entered on the register.
Whether the appellant proved that the respondents occupied the suit land with his consent
No. Although consent was pleaded in the replying affidavit, the appellant never testified at trial that the respondents lived on the land with his consent, and affidavit allegations did not amount to evidence.
The appellant's main defence was consent, but the court expected this to feature prominently in his viva voce evidence at trial, which it did not. Allegations in the replying affidavit did not amount to evidence where oral evidence was given. The court entertained doubts whether the prerequisites for adverse possession were demonstrated, but resolved the case on trust rather than adverse possession.
Whether the respondents properly invoked Order XXXVI rule 3 of the former Civil Procedure Rules
No. Citing Order XXXVI rule 3 was a misconception since the claim involved neither a vendor nor purchaser nor a contract for sale, but the respondents properly invoked Section 38(1) of the Limitation of Actions Act.
Order XXXVI rule 3 applies to questions arising out of contracts of sale of immovable property between vendor and purchaser. The respondents' claim was for a declaration of ownership by adverse possession, which fell squarely within Section 38(1) of the Limitation of Actions Act applicable to land registered under the Registered Land Act, one of the Acts cited in Section 37.
Legal principles established
#- A claim under Section 38(1) of the Limitation of Actions Act requires proof of open, uninterrupted and exclusive possession for at least 12 years, either after dispossessing the registered proprietor or upon his discontinuation of possession on his own volition.
- A customary law trust in respect of registered land need not be pleaded; a court may base its decision on an unpleaded issue if it appears from the course of the trial that the issue was left to the court, and such a trust need not be entered on the register.
- Nothing in the Registered Land Act precludes the declaration of a trust in respect of registered land even on first registration; a proprietor is not relieved of duties as trustee notwithstanding the indefeasibility of title.
- Where a person is shown to be in possession of land, the burden of proving that he is not the owner lies on the person who affirms that he is not the owner (Section 116 of the Evidence Act).
- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The High Court judgment declaring the entire suit land the property of the respondents is set aside
- 2.The respondents' Originating Summons is allowed limited to ten (10) acres of the suit land, to which the appellant held the land in trust for the respondents
- 3.The remaining part of the suit land continues to be occupied by the appellant
- 4.No order for costs of the appeal; each party to bear their own costs
- On appeal from
- High Court of Kenya at Busia
- H.C.C. No. 28 of 2000
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Court of Appeal jurisdiction over appeals from the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hassan Mastajabu & another v Chief Land Registrar Kwale & 3 others [2021] KEELC 4385 (KLR)[2021] KEELC 4385 (KLR)10 Feb 2021
Cite this brief
#Cite this brief
Caselaw, "John Baraza Ojiambo v Veronica Auma Ojiambo", Case Analysis (2013). Civil Appeal No. 52 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/228/eng@2013-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.