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Court of AppealDismissedCivil Appeal 94 of 2018· [2022] KECA 1245 (KLR)

County Government of Busia v Emasete & another

Court of Appeal
4 November 2022
4,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal against the judgment of the Environment and Land Court at Busia (A.K. Kaniaru, J, dated 18 October 2017) which had dismissed the County Government of Busia's counterclaim in a trespass suit brought by the personal representatives of the estate of Desiranda Akanyati Osumati over parcel Mundika/Bukhayo/329. The County Government argued the land had been compulsorily acquired in 1981 and that the respondents lacked capacity, having sued as personal representatives of a deceased who was merely a trustee, and that post-filing changes to the register confirmed the position. Tuiyott, JA wrote the leading judgment, with which Kiage and Mumbi Ngugi, JJA concurred. The Court first held, on the evidence, that the 2nd respondent was the Wesonga Osimatti named in the register, the appellant having led no evidence to refute this. On capacity, the Court held that trust property formed no part of the deceased's estate, but because the trust - predicated on the beneficiary attaining 18 years in 1985 - had never been formally terminated, it was a continuing trust whose personal representatives were duty bound to give effect to it and to protect the property; they therefore had capacity to sue in trespass. The Court also held that although the post-filing register changes breached lis pendens, the appellant, having failed to prove compulsory acquisition (no inquiry, award or compensation was shown) and being in law a trespasser, could not invoke the doctrine to upset the judgment below. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Identity of the 2nd respondent as Wesonga Osimatti

Holding

The trial court's finding that the 2nd respondent is Wesonga Osimatti could not be faulted; no evidence was led by the appellant to refute the oral and documentary evidence.

Reasoning

The 2nd respondent testified he was Wesonga Osimatti; the 1st respondent's adopted statement confirmed the deceased held the land in trust for him. The appellant led no contrary evidence and did not seek identity card verification at trial, so the discrepancy in spelling was immaterial.

p. 5
02

Capacity of the respondents as personal representatives

Holding

Trust property did not form part of the deceased's estate, but as the trust was continuing and the deceased remained named proprietor, her personal representatives were duty bound to protect the property and had capacity to sue in trespass.

Reasoning

The beneficiary had attained majority in 1985 but the register was never changed; the trust was therefore continuing. The personal representatives were responsible for giving effect to the trust by transferring the property and, in the meantime, protecting it, entitling them to mount the trespass proceedings.

p. 6
03

Effect of changes to the register during the suit (lis pendens)

Holding

The changes made to the register after filing, without the authority of the ELC, breached lis pendens, but the appellant could not rely on the doctrine since the inevitable outcome was that it was not the owner and was a trespasser.

Reasoning

Section 163 of the repealed Registered Land Act saved the common law and doctrines of equity, including lis pendens. The post-filing registrations were unauthorised, but the doctrine protects a party with a genuine claim to the property; the appellant, a trespasser, could not invoke it to upset the judgment.

p. 7
04

Compulsory acquisition defence and counterclaim

Holding

The trial court correctly found compulsory acquisition was not proved, as no inquiry, written award or compensation was demonstrated; the appellant could not fault that finding.

Reasoning

Under the repealed Land Acquisition Act (cap 295), compulsory acquisition required an inquiry and a written award of compensation served on affected persons. Neither the record of acquisition proceedings nor the award was produced, so the counterclaim was rightly dismissed.

p. 3

Legal principles established

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  • Personal representatives of a deceased registered proprietor who held land in trust, the trust being a continuing trust not formally terminated, have capacity to sue to protect the trust property, including in trespass.
  • On a first appeal, the Court re-evaluates the evidence afresh while bearing in mind that it did not see or hear the witnesses.
  • 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 for decision.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • Land Acquisition Act (repealed)cap 295
  • Trustee Actsection 45
  • Registered Land Act (repealed)section 163

Cases cited (4)

  • Selle & another v. Associated Motor Boat Company Ltd. & others
    [1968] EA 123

    Role of a first appellate court to re-evaluate evidence afresh without seeing or hearing witnesses.

  • Odd Jobs vs Mubia
    [1970] EA 476

    A court may base its decision on an unpleaded issue if the course of trial shows the issue was left to it.

  • Baber A Mawji v United States International University & another
    [1976] eKLR

    Doctrine of lis pendens and the court's power to prevent dealings in immovable property pending determination.

  • Bellamy v Sabine
    [1857] 1 De J 566, 584

    Foundation of lis pendens: suits could not terminate successfully if alienations pendente lite prevailed.

On appeal from
Environment and Land Court at Busia
Busia ELC No. 33 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "County Government of Busia v Emasete & another", Case Analysis (2022). Civil Appeal 94 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1245/eng@2022-11-04

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