Jemimah Caleb Atieno v Mary Anga’wa & another [2019] KECA 485 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a family land appeal, confirming that customary trusts benefit only landless family members and that adverse possession claims fail without proof of when possession began.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the late Dr. James held the suit property in trust for the entire family of Mzee Oyunga including the deceased Caleb Willis Otieno
- 2.Whether Caleb was a trespasser on the suit property, and if not whether he had acquired adverse possession of the portion of land which he occupied immediately before his death
- 3.Whether the Luo Customary Law on burial required that Caleb be buried on the suit property
- 4.Who meets the costs of the suit?
Key legal issues
#Whether a customary trust in favour of the whole Oyunga family was established
A trust existed, but only for family members who had no land of their own; Caleb and Ephraim had been allocated parcels 1015 and 1016, so they and their families were excluded from the trust
The court accepted the evidence of Perez, Dan Odera Otieno and Jedidah Oyunga that Mzee Oyunga caused parcels 1015 and 1016 to be purchased from Ogumbo and allocated to Caleb and Ephraim. The appellant's own witness corroborated the gift. The totality of the evidence therefore established a trust whose beneficiaries were the landless members of the family, not Caleb's house.
Whether issues not raised at trial (succession proceedings for Anthony, authenticity of green cards) could be raised on appeal
No; such issues were never raised at trial, and an appellant cannot fault the trial court for failing to consider matters it was never given the opportunity to consider
The record showed the appellant's then advocate acceded to copies of the documents being produced. The court held that where an issue was not raised before the trial court, the appellate court cannot properly reappraise it, and delving into such new issues is beyond its jurisdiction as a first appellate court.
Effect of the cancellation of the green card entry showing Dr. James held the land as guardian
Nothing turns on the cancellation, since the persons named in the deleted entry were Jedidah's sons, whom both courts found to be trust beneficiaries in any event
The trial judge had found the circumstances of the deletion unclear but noted a beneficiary and his mother were comfortable with the correction. The Court of Appeal agreed the matter was inconsequential because the named persons were within the class found to be beneficiaries, so the deletion did not defeat the appellant's case but did not advance it either.
Whether Caleb acquired title by adverse possession
No; there was no cogent evidence of when possession commenced and his occupation was interrupted by litigation, including a suit filed in 1996 and the 2007 injunction
The appellant's evidence was inconsistent: Caleb was employed by the Postal Corporation and moved with his postings, only returning on retirement in 1992. The court could not fix the date time began to run, and even on the most favourable view his possession was not peaceful, continuous or uninterrupted for 12 years, so the statutory burden was not discharged.
Whether Luo customary law required Caleb's burial on the suit property
The alleged custom precluding Caleb from building or being buried on parcel 1015 was not established, and his brother Ephraim had been buried on his own portion of that land
The court reasoned that it was common ground that Ogumbo Ochuko was buried on Caleb's portion and Ephraim was buried on his portion of the same land. If the alleged custom truly operated, Ephraim would not have been buried there. The custom therefore failed on the facts and provided no basis for burial on the suit property.
Whether the trial judge was biased
No bias was proved; an adverse decision alone does not give rise to an apprehension of bias
The court held that the mere fact the learned Judge's decision was contrary to what the appellant expected does not establish or create an apprehension of bias. The trial judge had addressed the issues and made findings supported by the evidence, so the allegation failed.
Legal principles established
#- A customary trust, if proved, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act, and the categories of customary trust are not closed; each case turns on its own evidence
- Courts will only imply a trust in cases of absolute necessity to give effect to the intention of the parties, and that intention must be clearly determined before a trust is implied
- A first appellate court must reappraise the trial evidence and reach its own conclusions, bearing in mind it did not see the witnesses testify
- An appellate court will not entertain issues that were not raised and considered in the trial court, as doing so is beyond its jurisdiction
- A claimant in adverse possession must prove peaceful, continuous and uninterrupted possession for 12 years and the date possession began; otherwise the claim fails
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear his/her own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C No. 83 of 2007 as consolidated with H.C.C.C No. 124 of 2012
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's role as first appellate court re-appraising trial evidence
- Consolidated with
- H.C.C.C No. 83 of 2007 consolidated with H.C.C.C No. 124 of 2012 (High Court at Kisumu)
Relief refused
#Declaration of customary trust in favour of all members of the Oyunga family including Caleb and his family
Evidence showed the trust extended only to family members without land of their own; Caleb and Ephraim had been allocated parcels 1015 and 1016
Claim for adverse possession
No cogent evidence of the date possession commenced and possession was interrupted by litigation, so the burden of proving 12 years' uninterrupted possession was not discharged
Right to bury Caleb on the suit property under Luo customary law
The alleged custom barring Caleb from being buried on parcel 1015 was not established, as Ephraim was buried on his own portion of the same land
Allegation of bias against the trial judge
A decision contrary to the appellant's expectations does not give rise to an apprehension of bias
Costs
Each party to bear his/her own costs, this being a family dispute
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.
The upshot of the foregoing is that we find that the appeal lacks merit and is hereby dismissed. This being a family dispute we are of the view that each party should bear his/her own costs. Orders accordingly.
The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.
As the first appellate court, we are cognizant that our role is to appraise the evidence which was adduced at the trial court and make our own conclusions.
In our view, delving into those issues is beyond our jurisdiction and we decline to do so.
Section 38 of the Act permits the person in peaceful possession, without the land owner's permission, for a continuous and uninterrupted period of 12 years, but who has also done acts on the land which are inconsistent with the registered owner's enjoyment of the soil for the purpose for which he intended to use it, to apply to be registered as its owner.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jemimah Caleb Atieno v Mary Anga’wa & another [2019] KECA 485 (KLR)", Case Analysis (2019). Civil Appeal No. 3 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/485/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.