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ELCPartially AllowedELC No. 17 of 2014 (Formerly HCC 75 of 2011)· [2018] KEELC 3707 (KLR)

Pius Likama & 5 others v Charles Ouma Oduor [2018] KEELC 3707 (KLR)

High Court of Kenya, Environment and Land Division
19 April 2018
1,329 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to grant land trust orders that had become unnecessary, but confirmed the defendant was only ever a caretaker and made him pay the plaintiffs' costs.

What this practically means

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Executive summary

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Six Plaintiffs, comprising individuals associated with Mercy Children Centre (MCC) and One Child's Village (OCV), a Canadian donor entity, sued the 1st Defendant, Charles Ouma Oduor, together with the District Land Registrar and the Attorney General, claiming that land parcel MARACHI/BUMALA/1962 had been purchased with funds they provided and that the 1st Defendant, their point-man, had fraudulently registered it in his own name instead of holding it in trust. They sought a declaration of trust and breach, a permanent injunction, an order for transfer to a new trustee, cancellation of the title, and rectification of the register. The 1st Defendant had also filed a separate suit in the lower court seeking a restraining order, which was agreed to be heard together with this suit as a counter claim, though the files were never formally merged. By the time of judgment, ownership of the disputed land had passed from the 1st Defendant to a third party holding it in trust for the 5th Plaintiff, which the court noted was precisely what the Plaintiffs had sought. The court therefore held that issuing the orders sought would be in vain and expressly declined to make any decision on prayers (a) to (e), as they had been overtaken by events. The court also noted the 1st Defendant's shift in position at hearing without amending his defence. The court found on the documents that the 1st Defendant was meant to be a trustee or caretaker, and awarded costs of the suit to the Plaintiffs.

Key legal issues

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01

Effect of supervening events on the prayers sought

Holding

The prayers were not granted because the relief sought had been overtaken by events; the land had passed from the 1st Defendant to a third party holding it in trust for the 5th Plaintiff, which was precisely what the Plaintiffs wanted

Reasoning

The court noted that ownership of the disputed land had changed from the 1st Defendant to a third party holding in trust for the 5th Plaintiff. Since the orders sought were premised on the 1st Defendant's registered ownership, issuing them would be futile. The court deliberately declined to make findings on prayers (a) to (e), confining itself to costs.

p. 2
02

1st Defendant's shift in position at hearing without amending pleadings

Holding

The 1st Defendant's change of position during hearing, from asserting sole ownership to wishing the land be registered in the 5th Plaintiff's name, could not avail him because his defence was never amended

Reasoning

The pleadings rested on the 1st Defendant's claim of sole ownership, which grounded his own injunction claim. At hearing he wished the land transferred to the 5th Plaintiff. The court held that pleadings form the basis of orders and the Defendant ought to have amended his defence; his unpleaded shift could not be granted.

p. 2
03

Costs

Holding

Costs were awarded to the Plaintiffs because the suit would not have been necessary had the 1st Defendant not registered the land as sole owner when he was meant to be a trustee or caretaker

Reasoning

On the documents availed, the court found the 1st Defendant was meant to be a trustee or caretaker of the disputed land. His registration of the land as sole owner occasioned the litigation, so costs were awarded to the Plaintiffs without hesitation.

p. 2

Legal principles established

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  • Pleadings form the basis upon which orders are granted; a party cannot obtain relief on a position not pleaded
  • Where supervening events render the claimed orders incapable of effect, the court will decline to issue them as they would be issued in vain

Court orders

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  1. 1.Costs of the suit awarded to the Plaintiffs
  2. 2.No decision made on prayers (a), (b), (c), (d) and (e) of the amended plaint as they have been overtaken by events
Jurisdiction invoked
Original jurisdiction of the High Court (Environment and Land Division) over the trust claim relating to land parcel MARACHI/BUMALA/1962

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, "Pius Likama & 5 others v Charles Ouma Oduor [2018] KEELC 3707 (KLR)", Case Analysis (2018). ELC No. 17 of 2014 (Formerly HCC 75 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3707/eng@2018-04-19

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