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ELCAllowedBungoma ELC Case No 282 of 2013 (Consolidated with Bungoma ELC Case No 178 of 2014)· [2019] KEELC 628 (KLR)

Clement Wekesa Muuyi & another v Patrick Wekesa Okumu (sued as representative of the Estate of Okumu Masai (Deceased) [2019] KEELC 628 (KLR)

Environment and Land Court
21 November 2019
5,113 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land titles created from a Land Disputes Tribunal award because the tribunal had no power to decide registered land ownership.

What this practically means

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Executive summary

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This consolidated judgment of the Environment and Land Court at Bungoma (Olao J) disposed of Bungoma ELC Case No 282 of 2013 (Clement Wekesa Muuyi) and ELC Case No 178 of 2014 (Idi Wasike Masai), both filed against Patrick Wekesa Okumu as legal representative of the late Okumu Masai. The plaintiffs, originally registered proprietors of parcels East Bukusu/West Sang'alo/1710 and 1709, alleged that the deceased maliciously and secretly procured orders of the Kanduyi Land Disputes Tribunal, adopted as a judgment of the Resident Magistrate's Court in Bungoma LDT Case No 20 of 2005, cancelling their titles without their knowledge or jurisdiction, leading to the creation of new parcels 3249 and 3250. Both suits followed the direction of Omollo J in Bungoma High Court Civil Appeal No 70 of 2008 that a fresh suit be commenced for cancellation of titles. The court first rejected the defendant's objections: the res judicata plea failed because the Tribunal and the subordinate court lacked jurisdiction over registered land and their orders were nullities, and Omollo J had not heard and finally decided the titles issue; the limitation plea failed because the cause of action arose in 2007 when the impugned titles were created, and the suits were filed in 2013 and 2014. On the merits, invoking MacFoy v United Africa Co Ltd and Court of Appeal authority, the court held the Tribunal's award and the subordinate court's judgment were nullities incapable of cancelling titles or creating new ones. The defendant's assertion of adverse possession failed as no counter-claim was filed and possession began only after 2006. Judgment was entered for the plaintiffs: titles 3249 and 3250 cancelled and 1709 and 1710 restored; the defendant and his household to vacate within three months, failing which eviction; a permanent injunction; and costs to the plaintiffs.

Key legal issues

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01

Res judicata

Holding

The plea of res judicata fails because the Tribunal and subordinate court lacked jurisdiction over registered land and the High Court appeal did not hear and finally decide the issue of the land titles.

Reasoning

For res judicata to apply, the former suit must have been heard and finally decided by a competent court. The Kanduyi Land Disputes Tribunal had no jurisdiction to determine ownership of registered land, so its award adopted by the Magistrate's Court was a nullity incapable of grounding res judicata. Further, Omollo J declined to determine the titles issue and directed a fresh suit, so that ingredient was also not met.

p. 4
02

Limitation of actions

Holding

The suits are not statute barred because the cause of action arose when the impugned titles were created in 2007, and the suits were filed in 2013 and 2014.

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from when the right accrued. The titles sought to be cancelled (parcels 3249 and 3250) were created on 18th June 2007 and 14th November 2007 following the Tribunal award. The suits filed in 2013 and 2014 were therefore well within twelve years.

p. 5
03

Impeachment of titles under Section 26(1) of the Land Registration Act

Holding

Titles 3249 and 3250, founded on a null Tribunal award and null subordinate court judgment, cannot stand and must be cancelled with the original titles restored.

Reasoning

Although the plaintiffs did not plead fraud or misrepresentation, they pleaded that the proceedings were 'without any legal basis' and 'without jurisdiction'. Section 26(1)(b) recognises 'illegally' and 'un-procedurally' as grounds to challenge a title. Since the Tribunal and the subordinate court acted without jurisdiction, their orders were nullities which could neither cancel existing titles nor create new ones.

p. 5
04

Adverse possession

Holding

The defendant's assertion of adverse possession fails; no counter-claim was filed and possession commenced only after 2006.

Reasoning

The defendant pleaded that his father occupied the land since 1976 to the exclusion of the plaintiffs, extinguishing their titles. The court noted no counter-claim was filed, so no such orders could be granted. Further, on the record the defendant took possession only after 2006 when the Tribunal award was adopted as a judgment, so the twelve-year period had not lapsed by the time the suits were filed.

p. 6
05

Functus officio

Holding

The functus officio argument does not arise because Omollo J's advice to file a fresh suit was part of her judgment and she did nothing thereafter.

Reasoning

Counsel for the defendant argued there is no provision for filing a fresh suit to challenge a portion of a judgment and that a court becomes functus officio once it has pronounced itself. The court rejected this, holding the suits were not a challenge to Omollo J's judgment but rather followed her express direction to commence fresh suits for cancellation of titles, which was part of the judgment itself.

p. 4

Legal principles established

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  • A judgment delivered by a court or tribunal without jurisdiction is a nullity and cannot operate as res judicata; every proceeding founded on it is likewise a nullity.
  • Where a tribunal exercises a jurisdiction it does not possess, its proceedings and every resulting decision, award or act (including subsequent registrations) are null and void.
  • A tribunal exercising jurisdiction under the repealed Land Disputes Tribunal Act was not competent to determine disputes relating to ownership of registered land.
  • A judgment obtained through mistake, fraud or illegally can be challenged in fresh proceedings, whether by declaratory suit or ordinary suit.
  • Adverse possession cannot be granted where it was not pleaded by way of Counter-Claim, and possession commencing from adoption of the Tribunal award in 2006 could not mature into 12 years' adverse possession by 2013/2014.

Court orders

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  1. 1.The titles to land parcels number EAST BUKUSU/WEST SANG'ALO/3249 and 3250 are cancelled and the plaintiffs' titles number EAST BUKUSU/WEST SANG'ALO/1709 and 1710 are reverted to and restored
  2. 2.The defendant, his relatives, families, servants, agents and properties to vacate the land parcels NO EAST BUKUSU/WEST SANG'ALO/1709 and 1710 within three (3) months from the date of the Judgment and in default, they be evicted therefrom by Court Bailiffs/Auctioneers in accordance with the law
  3. 3.An order of permanent injunction restraining the defendant, his agents, heirs and relatives from interfering with the plaintiffs use of the land parcels number EAST BUKUSU/WEST SANG'ALO/1709 and 1710
  4. 4.The plaintiffs are awarded costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Land Disputes Tribunal Act (repealed)Section 8(1)
  • Limitation of Actions ActSection 7
  • Land Registration ActSection 26(1) and 26(1)(b)

Cases cited (5)

  • LOTTA .V. TANAKI
    2003 2 E.A 556
  • JOTHAM AMUNAVI .V. CHAIRMAN SABATIA DIVISIONAL LAND DISPUTE TRIBUNAL & ANOTHER
    C.A Civil Appeal No 256 of 2002
  • MCFOY .V. UNITED AFRICA CO LTD
    1967 3 ALL E.R 1169
  • JOSEPH MALAKWEN LELEI & ANOTHER V. RIFT VALLEY LAND DISPUTES APPEALS COMMITTEE & OTHERS
    C.A Civil Appeal No 82 of 2006 (2014 eKLR)
  • JOHANA NYOKWOYO BUTI .V. WALTER RASUGU OMARIBA & OTHERS
    C.A Civil Appeal No 182 of 2006 (2011 eKLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; consolidated suits by consent of the parties

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Clement Wekesa Muuyi & another v Patrick Wekesa Okumu (sued as representative of the Estate of Okumu Masai (Deceased) [2019] KEELC 628 (KLR)", Case Analysis (2019). Bungoma ELC Case No 282 of 2013 (Consolidated with Bungoma ELC Case No 178 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/628/eng@2019-11-21

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