Odinga Makaka & 2 others v Lucie Nambo Pamba (suing ss the administrator of the Estate of Hannington Ouma Pamba (Deceased) & 8 others [2017] KEELC 2233 (KLR)
The bottom line
#The High Court dismissed a family land dispute because the claimants sued without letters of administration, failed to prove fraud, and left other affected families out of the case.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of plaintiffs claiming through deceased fathers without letters of administration
The suit failed because the Plaintiffs, claiming entitlements of their deceased fathers under a trust held by Edward Pamba, did not obtain letters of administration, nor did they prove the Defendants were legal representatives of Edward Pamba's estate
The trust claimed belonged to the Plaintiffs' deceased fathers, not to them personally. The court held that a deceased's entitlement cannot be pursued without a grant. The Plaintiffs' submission that they sued as beneficiaries in their own right contradicted their pleadings and evidence. Further, the 1st Defendant was sued as administrator of Hannington Ouma Pamba but the Plaintiffs produced no grant proving this. The court agreed with the Defendants on both points, citing Nathaniel O. Khisa vs Mary Khisa Nyanyi.
Proof of fraud in the subdivision and transfer of the suit land
Fraud was not proved; green cards alone, without a paper trail or evidence from the Lands office, could not establish fraud to the required higher standard
Fraud requires proof to a standard higher than a balance of probabilities. The green cards only showed that ownership changed from Edward Pamba to the Defendants on a given date, not the process or stages of the change. The Land Registry, where the change was effected, was neither joined nor called as a witness. The Defendants merely denied fraud and were not bound to disprove it under Sections 107, 108 and 109 of the Evidence Act.
Whether a constructive trust arose in favour of the Plaintiffs
No constructive trust was proved; the claim as pleaded was derivative of the deceased fathers' trust, and no bargain, undertaking or promise between the Plaintiffs and Defendants was demonstrated
The Plaintiffs argued in submissions only that they sued as beneficiaries in their own right, contradicting pleadings and evidence. Had they claimed a constructive trust inter se, they were bound to prove a bargain, undertaking, understanding or promise whose denial by the Defendants would be unconscionable. The issue was raised late, in submissions only, and without the requisite grant the court could not entertain such a trust.
Non-joinder of interested families and omission of crucial witness evidence
The suit was fatally flawed because other families living on the land, two primary schools and a church were excluded, and witnesses whose statements were on record were never called by either side
Records showed statements by Washington Abangi Okwaba and Henry Abangi Oluma claiming entitlement to the land, yet the proposed sharing excluded them, the schools and the church. The court held these persons deserved to be heard, preferably as interested parties. Additionally, the Plaintiffs' own witnesses and the Defendants' witnesses (Mary Akongo, Raphael Obonyo Okutta, Julius Achoka) were not called, so their statements counted for nothing.
Existence of the 4th and 6th Defendants and adequacy of service
The Plaintiffs failed to prove that the 4th and 6th Defendants, whose existence was denied by the 5th, 7th, 8th and 9th Defendants, had been served or existed
The defence of the 5th, 7th, 8th and 9th Defendants denied the existence of the 4th and 6th Defendants. No affidavit of service was on record showing they were served. The Plaintiffs bore the burden of showing they had not sued phantoms or ghosts and failed to do so, nor did they take issue with the absence of a defence from these two Defendants.
Quantum of land and incompleteness of the claim
The Plaintiffs' own pleadings accounted for only 38.79Ha of the 45Ha parcel, leaving 6.21Ha unclaimed by the Defendants, whose owners were not joined to the suit
A mathematical calculation of the Defendants' alleged holdings from the Plaintiffs' pleadings totalled 38.79Ha. The remaining 6.21Ha belonged to persons not before the court. The court found it unjustifiable to visit court orders concerning the whole land upon owners who were not represented in the suit. The Plaintiffs needed to account for this discrepancy.
Legal principles established
#- A claimant cannot pursue a deceased person's entitlement to land without obtaining the requisite grant of letters of administration; suits instituted without such a grant are fatally defective
- Fraud must be pleaded and proved to a standard higher than a balance of probabilities; the party alleging fraud bears the burden of proof and a party who merely denies fraud need not disprove it
- A party alleging fraud bears the evidential burden to call witnesses such as the Land Registrar; the denying party is not bound to prove non-fraud, per Sections 107, 108 and 109 of the Evidence Act
- To establish a constructive trust, a claimant must show a bargain, undertaking, understanding or promise between the parties which it would be unconscionable for the registered owner to resile from
- Persons with interests in land subject of a sharing claim, including occupiers and institutions, must be joined or heard before orders affecting the whole land are made
Court orders
#- 1.The Plaintiffs' suit is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel SAMIA/BUDONGO/232 (suit transferred from the High Court as HCC 24 of 2012)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odinga Makaka & 2 others v Lucie Nambo Pamba (suing ss the administrator of the Estate of Hannington Ouma Pamba (Deceased) & 8 others [2017] KEELC 2233 (KLR)", Case Analysis (2017). ELC No. 82 of 2014 (Formerly HCC 24 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2233/eng@2017-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.