County Government of Busia v Emasete & another
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Identity of the 2nd respondent as Wesonga Osimatti
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.
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.
Capacity of the respondents as personal representatives
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.
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.
Effect of changes to the register during the suit (lis pendens)
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.
Section 163 of the repealed Registered Land Act saved the common law and doctrines of equity, including lis pendens.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.
Compulsory acquisition defence and counterclaim
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.
Under the repealed Land Acquisition Act (cap 295), compulsory acquisition required an inquiry and a written award of compensation served on affected persons.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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.