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ELCPartially AllowedELC Case No. 53 of 2012 (Consolidated with Kisumu HCCC No. 58 of 2009)· [2019] KEELC 1841 (KLR)

Vincent Onyango Ojwang v Okoth Odhuongo & another [2019] KEELC 1841 (KLR)

Environment and Land Court
5 September 2019
2,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court confirmed the landowner's title, declared the occupants trespassers since 2012, and gave them 90 days to vacate their own cost.

What this practically means

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Executive summary

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The original plaintiff, Martina Amina Ochieng, sued Okoth Odhuongo and Gabriel Odhuongo in ELC No. 53 of 2012 seeking a declaration that they had encroached and trespassed onto Uholo/Rambula/679, a mandatory injunction to remove structures, and a permanent injunction. She was registered proprietor on 27 October 2008; upon her death, Vincent Onyango Ojwang was substituted. The suit was consolidated with Kisumu HCCC No. 58 of 2009, in which the 1st Defendant claimed a portion of the parent parcel Uholo/Rambula/422 under customary trust or adverse possession against the administrators of three estates. The court framed five issues and found that the Plaintiff's registration was regular, with no evidence of fraud or irregularity in the adjudication, subdivision or succession distribution. It held that the 1st Defendant's 2009 claim was a non-starter because the parent title had closed upon subdivision in June 2006 and the plaint was never amended to target the resulting subdivisions, and no amended defence or counterclaim was filed despite leave. On the evidence, including the Assistant Chief's corroboration and the locus visit, the Defendants entered the suit land in late 2012 and erected five structures, amounting to trespass on land whose unchallenged registration is protected under Article 40(6) of the Constitution and sections 24, 25 and 26 of the Land Registration Act. The HCCC No. 58 of 2009 claim was dismissed with costs; judgment was entered for the Plaintiff with a declaration of trespass, boundary confirmation by the Land Registrar and Surveyor, 90 days to give vacant possession, default demolition and eviction orders, a permanent injunction, and costs to the Plaintiff.

Key legal issues

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01

Regularity of the Plaintiff's title to Uholo/Rambula/679

Holding

The registration of the suit land in the name of Martina Amina Ochieng on 27 October 2008 was regular; no evidence of fraud or irregularity was tendered and the title stands protected under sections 24 and 25 of the Land Registration Act

Reasoning

The court relied on the title deed and official search showing the parcel was a subdivision of Uholo/Rambula/422 transferred to the original plaintiff. No party produced the green card for the parent title, but no evidence of irregularity, illegality or fraud in the adjudication, registration or subdivision was availed. Parties dissatisfied with adjudication had statutory objection and appeal avenues under Sections 26 and 29 of the Adjudication Act, and no challenge to the succession distribution was shown.

p. 2
02

Effect of the Defendants' trust/adverse possession claim over the parent parcel

Holding

The claim in HCCC No. 58 of 2009 was defective and dismissed because the parcel sued over no longer existed, having been closed on subdivision in 2006, and the plaint was never amended

Reasoning

The 1st Defendant's 2009 suit sought trust or adverse possession declarations over Uholo/Rambula/422, but that title had closed in June 2006 when subdivision created Uholo/Rambula/679. Without amendment to include the resulting subdivisions, and with no amended defence or counterclaim filed despite leave granted on 28 October 2015, the claim could not stand and was dismissed with costs to the 2nd Defendant (the plaintiff in this suit).

p. 2
03

Whether the Defendants were in possession and when they entered

Holding

The Defendants entered the suit land in late 2012 and erected five structures, corroborated by the Assistant Chief's independent testimony and the locus visit

Reasoning

PW1 testified and pointed out three semi-permanent houses and two grass-thatched houses during the 19 January 2017 locus visit. PW2, the Assistant Chief with no interest in the land, confirmed the Defendants moved from their father's land in 2012 and were erecting houses and fencing. DW2 admitted constructing an iron-roofed house on 18 August 2012. The court found no reason for the Assistant Chief to take sides and believed the corroborated testimony.

p. 2

Legal principles established

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  • A registered proprietor's title is protected unless successfully challenged under Article 40(6) of the Constitution and Section 26 of the Land Registration Act; unchallenged entry onto such land is trespass
  • A claim over land described in a title that has been closed upon subdivision is a non-starter unless the pleading is amended to target the resulting subdivisions
  • Dissatisfaction with adjudication must be pursued through objection and appeal under Sections 26 and 29 of the Adjudication Act

Court orders

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  1. 1.Plaintiff's claim in Kisumu HCCC No. 58 of 2009 dismissed with costs to the 2nd defendant in that case
  2. 2.Declaration that the Defendants' entry and continued possession of Uholo/Rambula/679 since 2012 amounts to trespass
  3. 3.County Land Registrar and Surveyor to urgently visit Uholo/Rambula/679 and confirm its boundaries in the presence of the parties and local administration
  4. 4.Defendants to, within 90 days of the boundary confirmation, remove themselves and all housing structures and developments and give the Plaintiff vacant possession
  5. 5.Demolition and eviction order to issue at the Defendants' costs upon failure to comply within the period given
  6. 6.Expenses payable to the County Land Registrar and Surveyor recoverable as costs of the suit
  7. 7.Upon vacant possession or eviction, Defendants permanently restrained from trespassing onto, alienating or converting the suit land or interfering with the Plaintiff's quiet use and enjoyment
  8. 8.Defendants to meet the Plaintiff's costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40(6)
  • Land Registration Act No. 3 of 2012Sections 24, 25, 26
  • Adjudication Act Chapter 284 Laws of KenyaSections 26, 29
  • Civil Procedure Act Chapter 21 Laws of KenyaSection 27
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (land title, trespass and occupation claims); consolidated suits under Civil Procedure Act

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, "Vincent Onyango Ojwang v Okoth Odhuongo & another [2019] KEELC 1841 (KLR)", Case Analysis (2019). ELC Case No. 53 of 2012 (Consolidated with Kisumu HCCC No. 58 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1841/eng@2019-09-05

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