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ELCAllowedKitale ELC Appeal arising from Kitale CMCC No. 572 of 2007· [2019] KEELC 1173 (KLR)

Gabriel G. Odhiambo v Wilson Chepkwony [2019] KEELC 1173 (KLR)

Environment and Land Court of Kenya
30 September 2019
MNMwangi Njoroge
5,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that old land company documents prove nothing if you skipped the official re-planning exercise that regularized ownership.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kitale against the judgment of a Senior Principal Magistrate in Kitale CMCC No. 572 of 2007, in which the respondent (original plaintiff) had been declared owner of plots Nos. 513 and 514 Tuwan Farm Ltd and granted vacant possession and a permanent injunction against the appellant. The respondent claimed to be an original 1966 shareholder of Tuwan Farm Ltd who was allocated 3.4 acres, later subdivided into 52 plots including the suit plots. The appellant, the original defendant, denied the claim, asserting he lawfully purchased the two plots in April 2007 from Edwina Mary Anyango Obare, who was selling on behalf of her sons in whose names the plots were registered following the Tuwan Farm Urban Project survey and re-planning exercise of 1990. The court, citing Selle v Associated Motor Boat Co. Ltd, re-evaluated the evidence and found the respondent had produced only pre-scheme Tuwan Farm Ltd documents, had never participated in or recognized the Urban Project regularization exercise, had not signed the register, and had ceased residing on the farm. Conversely, the court found an unbroken chain of transactions and documentation supporting the appellant's purchase and possession. Holding the trial magistrate's findings unsupported by evidence, the court allowed the appeal, quashed and set aside the trial judgment and decree, substituted an order dismissing the respondent's suit, and awarded the appellant costs of both the appeal and the suit. The respondent's cross-appeal raised no independent claim.

Key legal issues

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01

Ownership of plots Nos. 513 and 514 Tuwan Farm Ltd

Holding

The respondent failed to prove ownership; the plots were allocated to Edwina Mary Anyango Obare's sons and lawfully sold to the appellant.

Reasoning

The court re-evaluated the evidence and found the respondent produced only old Tuwan Farm Ltd documents and never participated in the Tuwan Farm Urban Project survey and re-planning exercise, nor signed the register. By contrast there was a clear chain of transactions: Kipkorir Maina sold to Edwina Obare, who obtained share certificate No. 575, transferred plots 513 and 514 to her sons, who consented to their sale to the appellant in 2007, with share certificates and receipts issued to the appellant.

p. 5
02

Effect of non-participation in the Tuwan Farm Urban Project re-planning exercise

Holding

A shareholder who did not follow up his entitlement after the subdivision cannot claim plots formally allocated and registered in the names of others.

Reasoning

The court found the respondent was largely absent from the farm, his house had been demolished due to old age and he relocated, and he did not participate in or recognize the Urban Project that regularized ownership after the 1990 survey. Documents from the defunct Tuwan Farm Ltd could not override the register and share certificates issued under the successor project's scheme, which recognized purchases from original members.

p. 5

Legal principles established

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  • In a first appeal the court's role is to reconsider and re-evaluate the evidence tendered before the trial court and make its own conclusions.
  • Where a land-buying company's planning/subdivision exercise regularized ownership and a claimant did not participate in or obtain documents from it, he cannot rely solely on pre-scheme company documents to claim plots allocated to others.

Court orders

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  1. 1.The judgment and decree of the honourable P. Biwott Senior Principal Magistrate in Kitale CMCC No. 572 of 2007 Wilson Chepkwony -vs- Gabriel G. Odhiambo is hereby quashed and set aside and substituted with an order dismissing the respondent’s suit in Kitale CMCC No. 572 of 2007
  2. 2.The respondent shall bear the costs of this appeal and the suit before the trial court in Kitale CMCC No. 572 of 2007

Authorities

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Cases cited (2)

  • Selle -vs- Associated Motor Boat Co. Ltd.
    [1965] E.A. 123
  • Joshua Njunge Nganga -vs- Wilson Chepkwony and 3 Others
    Kitale ELC No. 7 of 2013
On appeal from
Chief Magistrate's Court at Kitale
CMCC No. 572 of 2007
Jurisdiction invoked
First appellate jurisdiction over the Senior Principal Magistrate's Court in a land dispute

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, "Gabriel G. Odhiambo v Wilson Chepkwony [2019] KEELC 1173 (KLR)", Case Analysis (2019). Kitale ELC Appeal arising from Kitale CMCC No. 572 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1173/eng@2019-09-30

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