Habbakkuk Abogno v Jackton Oyoko Ojero (As official & representative of the Church of Christ Africa) & another [2018] KEELC 425 (KLR)
The bottom line
#The court dismissed a son's claim to recover family land donated to a church decades earlier, because he could not prove fraud or a customary trust.
What this practically means
#Executive summary
#Key legal issues
#Whether 0.07 Ha or the whole 0.7 Ha parcel was donated to the church
The plaintiff failed to prove that only 0.07 Ha was donated; the green card showed registration of the whole parcel in the defendants' names in 1972 with no complaint from the donor until decades later
The donor was deceased by trial, the transaction occurred in 1972 and the register opened the same year. The donor must have known of the registration and never complained. The plaintiff's word stood against the defendants' claim, and no complaint was raised until 2002 while the father was still alive. The court found the plaintiff was attempting to renege on what the deceased had voluntarily given the church.
Whether the defendants fraudulently caused the parcel to be registered
Fraud was not strictly proved despite particulars being pleaded
Although the plaintiff pleaded the particulars of fraud as required by law, it was incumbent upon him to specifically lead evidence and strictly prove the fraud. Applying R.G. Patel v Lalji Makanji, something more than a balance of probabilities is required, and that evidence was lacking on the plaintiff's part.
Whether the land was held in customary trust for the plaintiff under Luo customary law
No customary trust was proved; the plaintiff did not establish any category of customary trust
Citing the Supreme Court's declaration in Isack M'inanga Kiebia, the court acknowledged that customary trusts subsist under the proviso to Section 28 of the Registered Land Act but must be proved on evidence. The plaintiff proved none of the categories, and the elaborate adjudication process could not have registered the land without the consent of the beneficiary, Peter Ojero.
Whether the repealed Trust Land Act applied
The Trust Land Act was inapplicable as the suit land was private, not public land
Counsel for the plaintiff had extensively cited sections of the repealed Trust Land Act Cap 288, but the court held that Act related to public land held in trust for people or residents of a community by the Government, whereas this was private land donated to the 1st defendant.
Legal principles established
#- Allegations of fraud must be strictly proved; something more than a mere balance of probabilities is required
- A customary trust is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act, but not every claim of a right to land qualifies as a customary trust
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.Costs of the suit awarded to the defendants
- Jurisdiction invoked
- Environment and Land Court Act, Section 13 (Practice Directions in Gazette Notice No. 16268 dated 9th November 2012 - appeals from Magistrates Courts and Tribunals lie in the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Habbakkuk Abogno v Jackton Oyoko Ojero (As official & representative of the Church of Christ Africa) & another [2018] KEELC 425 (KLR)", Case Analysis (2018). Siaya PMCC Land Case / Environment and Land Court suit arising from plaint dated 28th June 2011 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/425/eng@2018-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.