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ELCPartially AllowedKisumu ELC (originally filed 5th October 1999; amended plaint 31st January 2014)· [2017] KEELC 808 (KLR)

Francis Odhiambo Oturu v Jackton Okula Aduogo [2017] KEELC 808 (KLR)

Environment and Land Court
22 November 2017
SKS. M. Kibunja
3,764 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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The court cancelled a land subdivision built on a Land Disputes Tribunal award, confirming tribunals cannot decide title to registered land in Kenya.

What this practically means

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Executive summary

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The Plaintiff sued to nullify the subdivision of parcel Kisumu/Bar/1762, registered on 11th November 1981 in the joint names of himself and his late father, and to cancel the resultant titles Kisumu/Bar/2138 and 2139, restrain and evict the Defendant. The Defendant, occupying part of the land, relied on an award by the Winam (Kisumu District) Land Disputes Tribunal in case No.7 of 1998, adopted in Winam RM Misc. Appl. No.2 of 2001, which had awarded him 1½ acres as the last born of his father; he also counterclaimed for a declaration that the registered proprietors held the land in trust for him, and pleaded prescription and adverse possession. The court framed six issues. It found the first registration was absolute and indefeasible, with no evidence of fraud, misrepresentation or mistake and no challenge under the Land Adjudication Act; no trust arose. The Defendant was a licensee by blood relationship, not an adverse possessor, since he only learned of the registration in 1997 and 12 years had not elapsed by the filing of suit in 1999. Critically, the Tribunal had no power under Section 3(1) of the Land Disputes Tribunal Act to determine title to registered land; its award was ultra vires, null and void, so the adoption proceedings and all consequential orders, including the subdivision, were a nullity, and no res judicata arose. The Plaintiff, substituted under a grant ad litem obtained in time, could litigate. Judgment was entered for the Plaintiff on prayers (a) to (c) and (e), with 90 days' vacant possession, default eviction; the counterclaim was dismissed with costs.

Key legal issues

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01

Whether the registration of the Plaintiff and his late father was as absolute owners or trustees

Holding

They were registered as absolute and indefeasible owners, not trustees; no evidence of fraud, misrepresentation or mistake, and no challenge under the Land Adjudication Act.

Reasoning

The adjudication record showed the parcel belonged to the Plaintiff and his late father in equal shares and was uncontroverted. The Defendant produced no documentary or corroborating oral evidence of an intention to hold in trust. Had sharing been intended, the register would have reflected it as it did for other parcels.

p. 5
02

Whether the Defendant was an adverse possessor or licensee

Holding

The Defendant was a licensee by blood relationship; adverse possession had not accrued since he only discovered the registration in 1997 when disputes started.

Reasoning

The Defendant did not know the land was registered to the Plaintiff and his father until he visited the Land Registrar, taken to be 1997. From 1997 to the filing of suit in 1999, 12 years had not passed for prescription under the Limitation of Actions Act. His adverse possession claim therefore crumbles.

p. 5
03

Whether the Land Disputes Tribunal had jurisdiction and whether the matter was res judicata

Holding

The Tribunal lacked jurisdiction over title to registered land; its award and the adoption in Winam RM Misc. Appl. No.2 of 2001 were ultra vires, null and void, so there is no res judicata bar to this suit.

Reasoning

Section 3(1) of the Land Disputes Tribunal Act limited tribunals to civil disputes over boundaries, occupation or use of land, and trespass - not title to registered land. The award effectively transferred registered title, which was outside its powers. The Tribunal also proceeded despite being alerted that the High Court was seized of the dispute. A void award cannot found res judicata.

p. 6
04

Whether the Plaintiff, substituted under a limited grant ad litem, could litigate

Holding

The Plaintiff filed the substitution application within the 90 days of the limited grant, and after substitution he effectively became the Plaintiff with all rights of a litigant.

Reasoning

The grant was limited to filing suit; the application dated 7th August 2013 was filed within the 90 days and granted on 28th October 2013. Upon substitution the Plaintiff stepped into his late father's position in the suit.

p. 6

Legal principles established

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  • Land Disputes Tribunals under the repealed Land Disputes Tribunal Act had no power to determine title to registered land; an award purporting to transfer title to registered land is ultra vires and a nullity.
  • An award made by a tribunal outside its powers is null and void, and any interest based on such an award is unlawful and unsustainable.
  • A first registration under Section 143 of the repealed Registered Land Act is indefeasible absent fraud, misrepresentation or mistake, and a party claiming a trust over such land must prove it.
  • A person who believes land is rightfully his cannot be in adverse possession until he learns of the registration against his claim; the 12-year period had not run.

Court orders

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  1. 1.Judgment entered against the Defendant and in favour of the Plaintiff in terms of prayers (a) to (c) and (e) of the Amended plaint - nullification of the subdivision of Kisumu/Bar/1762, cancellation of resultant titles Kisumu/Bar/2138 and 2139, permanent injunction and general damages as prayed.
  2. 2.The Defendant directed to give the Plaintiff vacant possession of the suit land in 90 (Ninety) days and in default eviction order to issue.
  3. 3.The Defendant's counterclaim dismissed with costs.

Authorities

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Legislation

  • The Registered Land Act Chapter 300 of Laws of Kenya (Repealed)Section 143
  • The Registered Land Act Chapter 300 of Laws of KenyaSection 30(g)
  • The Land Adjudication Act Chapter 284 of Laws of KenyaSections 26 and 29
  • The Evidence Act Chapter 80 of Laws of KenyaSection 51
  • Limitation of Actions Act Chapter 22 of Laws of KenyaSection 17
  • Land Disputes Tribunal Act Chapter 303A of Laws of Kenya (Repealed)Section 3(1)
  • Civil Procedure Act Chapter 21 of Laws of KenyaSection 7

Cases cited (6)

  • Mugogo –V- Sihowa
    [1998] eKLR
  • Ambale –V- Masolia
    [1976] eKLR
  • Joseph Gathiba –V- Charles Kingori Gathiba
    [2001] eKLR
  • Mr Lilian "S" -V- Caltex Oil Kenya Limited
    [1989] KLR at page 14
  • Republic –V- Judicial Commission of Inquiry into the Goldenberg Affair & 3 Others Exparte Mwalulu & 3 Others
    [2004] eKLR
  • Stephen Kibowen –v- The Chief Magistrates Court Nakuru & 2 Others
    C.A.C.A No.211 of 2013
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (suit concerning title to registered land; tribunal award challenged for ultra vires)

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, "Francis Odhiambo Oturu v Jackton Okula Aduogo [2017] KEELC 808 (KLR)", Case Analysis (2017). Kisumu ELC (originally filed 5th October 1999; amended plaint 31st January 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/808/eng@2017-11-22

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