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ELCPartially AllowedEldoret E & L No. 795 of 2012 consolidated with Eldoret E & L No. 975 of 2012· [2014] KEELC 273 (KLR)

H T & another v J T M & 2 others [2014] KEELC 273 (KLR)

Environment and Land Court
30 June 2014
MSMunyao Sila
9,371 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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A woman who claimed family rights over land in Nandi lost: long residence on land proves nothing without evidence of marriage, and the new owner may evict her.

What this practically means

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Executive summary

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Two consolidated suits concerning ownership of an 8.5-hectare parcel of land in Nandi District were heard together before the Environment and Land Court at Eldoret. H T claimed she had been married to T in 1987 under a woman to woman marriage under Nandi customary law, that the suit land was family land held in trust for her and the children of the union, and that T's transfer of the land to J K T in March 2010, while Eldoret HCCC No. 25 of 2005 was pending, was fraudulent. She sought cancellation of the transfer. J K T, the registered proprietor since 6 March 2010, sought a declaration that H T was a trespasser, her eviction, and damages. The court framed five issues. On res judicata, it held that the contention that the transfer was effected in breach of a restriction had already been determined in the earlier suit and could not be re-litigated, leaving only the family land claim open. On the alleged woman to woman marriage, the court found H T had failed to discharge the burden of proof: no witness to the alleged Koito ceremony, her parents, the intermediary, or the man alleged to have sired her children was called, and long cohabitation and care of children did not prove marriage, being consistent with her status as a worker or 'cheplakwa'. The transfer was thus lawful, Land Control Board consent having been proved, and J K T's title could not be cancelled. H T was declared a trespasser following revocation of her licence and ordered to vacate within three months. J K T was awarded token general damages of Kshs. 50,000/= in the absence of proof of loss, and H T was ordered to bear the costs of the consolidated suits. The judgment was delivered by Munyao Sila J on 30 June 2014 at Eldoret.

Key legal issues

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01

Res judicata

Holding

The challenge to the transfer based on the existence of a restriction was res judicata, having been conclusively dealt with in the ruling in Eldoret HCCC No. 25 of 2005; only the family land issue was fresh

Reasoning

The court applied Sections 6 and 7 of the Civil Procedure Act and the decision in Kenya Commercial Bank Ltd v Muiri Coffee Estates Ltd. The ruling by Azangalala J had determined that there was no valid restriction barring the transfer; H's remedy was appeal, not a fresh suit. The family land/trust claim was new because J was not a party to the former suit.

p. 10
02

Whether a woman to woman marriage under Nandi customary law existed

Holding

H failed to prove on a balance of probabilities that a Koito ceremony was held or that she was married to T under Nandi customary law

Reasoning

The burden lay on H as the party asserting the marriage. Apart from her own testimony, no witness to the alleged ceremony, no parents, and no intermediary was called. T categorically denied the marriage, and H's children were sired with R, who was not from T's husband's clan and was also not called. Long residence and care of children did not prove marriage, being consistent with H being a 'cheplakwa' (worker).

p. 11
03

Whether J's title was liable to be cancelled

Holding

J's title could not be cancelled; the transfer was lawful and Land Control Board consent was proved

Reasoning

The restriction argument was res judicata and the marriage claim failed. On the plea of want of Land Control Board consent, the plaintiffs produced evidence of consent, and H adduced no evidence to show it was not validly issued. As registered proprietor, J's rights under Section 25 of the Land Registration Act entitle him to exclusive possession.

p. 12
04

Whether H T has rights over the suit land and entitlement to damages

Holding

H T has no enforceable rights over the suit land, is a trespasser after revocation of her licence, and J is entitled to declaration, eviction and token damages

Reasoning

Having found no marriage and no trust, H had no overriding interest. Her occupation was that of a licensee, terminable at will, which was terminated by the demand letter from J. No evidence of the extent of J's loss was led, so only token damages of Kshs. 50,000 were awarded.

p. 12

Legal principles established

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  • A party is barred by Section 7 of the Civil Procedure Act from re-litigating an issue that has been previously decided by a court of competent jurisdiction
  • The burden of proving the existence of a woman to woman customary marriage rests on the party asserting it, and mere long cohabitation or care of children is not conclusive proof
  • Failure to call crucial witnesses to prove an alleged customary ceremony may lead to that fact not being proved on a balance of probabilities
  • Occupation under a licence which has been terminated renders the occupant a trespasser, and no claim for adverse possession can be founded on a licence

Court orders

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  1. 1.Declared that the transfer of the suit land from J T M to J K T was not fraudulent but was in accordance with the law
  2. 2.Declared J K T to be the lawful and absolute proprietor of the suit land vis a vis H T
  3. 3.Declared that H T has no interest in the suit land but only occupied it as a licencee
  4. 4.Declared that H T is a trespasser on the suit land, her licence having been revoked by the registered proprietor
  5. 5.Awarded J K T general damages for trespass against H T of Kshs. 50,000/=
  6. 6.Ordered H T to vacate the suit land within 3 months, failing which J K T may apply for an order of eviction at H T's costs
  7. 7.Ordered H T to bear the costs of the consolidated suits

Authorities

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Legislation

  • Civil Procedure ActSections 6 and 7
  • Limitation of Actions Act (CAP 22)Section 7
  • Registered Land Act (CAP 300)Sections 28 and 30(f), (g)
  • Land Registration Act, 2012 (Act No. 3 of 2012)Sections 24, 25, 27, 28(a) and (b)
  • Land Control Act (CAP 302)Consent of the Land Control Board
  • Civil Procedure Rules, 2010
  • Constitution of Kenya, 2010provisions protecting rights of spouses in property (as submitted by counsel)

Cases cited (8)

  • Mukangu v Mbui
    (2004) 2 KLR 256
  • Kanyora v Kinyanjui
    (2005) 1 KLR 29
  • Kimani v Kimani
    (2006) KLR 292
  • Kenya Commercial Bank Ltd vs Muiri Coffee Estates Ltd & 3 Others
    Civil Appeal No. 100 of 2010, consolidated with Civil Appeal No. 106 of 2010
  • Jacinta Wanjiku Kamau v Issac Kamau Mwangi & Another
    Civil Appeal No. 59 of 2001
  • Marigi v Muriuki & 2 Others
    (2008) 1 KLR
  • Esiroyo v Esiroyo
    (1973) EA 388
  • Obiero v Opiyo
    (1972) EA 227
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to ownership, transfer and occupation of land

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, "H T & another v J T M & 2 others [2014] KEELC 273 (KLR)", Case Analysis (2014). Eldoret E & L No. 795 of 2012 consolidated with Eldoret E & L No. 975 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/273/eng@2014-06-30

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