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ELCDismissedE.L.C. 107 of 2014 (Originating Summons) (Formerly 116 of 2014)· [2017] KEELC 293 (KLR)

J N N v E W K & another [2017] KEELC 293 (KLR)

Environment and Land Court of Kenya
7 December 2017
YAY. M. Angima
3,361 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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By an originating summons under Order 37 of the Civil Procedure Rules and section 38 of the Limitation of Actions Act, the Applicant (J N N) sought determinations that land parcel [particulars withheld] was matrimonial property jointly owned with the 1st Respondent (E W K), that she held it in trust for him, that the removal of his caution and restriction and her sale to the 2nd Respondent (H M N) on 13th March 2014 were fraudulent, and that he had acquired the property by adverse possession, with rectification of the register in his favour. The 1st Respondent denied the marriage, asserting a mere relationship that produced one child, and produced pay slips, a loan offer letter and co-operative documents showing she purchased and developed the property with her own resources. The 2nd Respondent asserted he was a bona fide purchaser for Kshs 1,000,000/- who followed due process, obtained Land Control Board consent and evicted the Applicant. The parties disposed of the suit by affidavit evidence and written submissions. The court, Y.M. Angima J, held that no marriage was proved - fathering a child was 'no evidence of a marriage' - and that no monetary or non-monetary contribution under the Matrimonial Property Act 2013 was demonstrated. No trust could therefore be implied. Fraud was neither particularised nor proved, and the Land Registrar was not joined. Adverse possession failed because the Applicant's occupation with the 1st Respondent was neither exclusive nor hostile, and fewer than 12 years had elapsed since she moved out in 2013. All questions were answered against the Applicant and the originating summons was dismissed with costs to the Respondents on 7th December 2017.

Key legal issues

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01

Existence of marriage and spousal rights over the suit property

Holding

Dismissed - no marriage proved and no contribution shown

Reasoning

Apart from a bare assertion that the 1st Respondent was his spouse, the Applicant gave no evidence of when, where or how a marriage was contracted, nor its form. Siring a child is not proof of marriage. Further, no evidence of earnings, savings or payments towards acquisition or development was given, so no 'contribution' under section 2 of the Matrimonial Property Act 2013 was established.

p. 4
02

Trust in favour of the Applicant

Holding

Dismissed - no basis for implying a trust

Reasoning

Since neither spousal status nor contribution was established, there is no foundation for a resulting or constructive trust. The Applicant's bare claim that the 1st Respondent agreed to joint registration was unsupported by evidence.

p. 5
03

Fraud in removal of caution/restriction and in the sale to the 2nd Respondent

Holding

Dismissed - fraud not particularised or proved; sale was for value

Reasoning

Fraud was alleged in general terms without particulars. The Land Registrar, accused of wrongfully removing the caution and restriction, was not joined and had no opportunity to respond. The evidence showed the 2nd Respondent was a purchaser for valuable consideration who followed due process including Land Control Board consent.

p. 5
04

Adverse possession

Holding

Dismissed - claim rejected

Reasoning

Applying Kasuve v Mwaani Investments Ltd, the claimant must prove exclusive, open, hostile possession for 12 years. The Applicant lived with the 1st Respondent, so possession was not exclusive or hostile to the registered owner. On his own averment she moved out in 2013, so by the 2014 suit less than 12 years had elapsed. The claim was 'grossly inadequate' and rejected.

p. 5
05

Rectification of the register and any 'other' interest

Holding

Dismissed

Reasoning

Rectification flows only from an established case, which failed. The ninth question was vague: it was for the Applicant to identify and prove any 'other' interest under written law, and no material evidence was adduced.

p. 6

Legal principles established

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  • Where property is registered in the name of one spouse, beneficial interest depends on each spouse's respective financial contribution, direct or indirect
  • Ownership of matrimonial property vests in spouses according to contribution (section 7, Matrimonial Property Act 2013)
  • Requirements of adverse possession
  • Possession claimed under adverse possession must be hostile, not with the owner's consent
  • Costs follow the event

Court orders

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  1. 1.The Applicant's originating summons dated 7th May 2014 is dismissed
  2. 2.Costs of the suit awarded to the Respondents
Jurisdiction invoked
Order 37 Rules 1, 7 and 8 of the Civil Procedure Rules and section 38 of the Limitation of Actions Act (Cap 22); Land Registration Act 2012 (sections 28, 71, 72, 73, 76, 77, 80)

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, "J N N v E W K & another [2017] KEELC 293 (KLR)", Case Analysis (2017). E.L.C. 107 of 2014 (Originating Summons) (Formerly 116 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/293/eng@2017-12-07

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