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ELCDismissedCase No 84 of 2017· [2019] KEELC 1847 (KLR)

Michael Francis Okumu Ngwala & another v Milton Achieng Odhul [2019] KEELC 1847 (KLR)

Environment and Land Court of Kenya
23 July 2019
2,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Migori Environment and Land Court dismissed a family land dispute because the plaintiffs lacked authority to sue for the deceased owner's estate and filed their fraud claim nearly three decades too late.

What this practically means

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Executive summary

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The plaintiffs, as administrators of the estates of Lucas Ngwala Kathethi (deceased 2) and Joanes Tharoge Kathethi (deceased 3), sued the defendant claiming that he fraudulently caused the registration of LR Suna West/Wasimbete/793 (now subdivided into 1575 and 1576) in lieu of deceased 2 and 3 without the family of Kathethi Nyakogra (deceased 1) or Land Control Board consent, and sought deregistration, registration in their favour, and a permanent injunction. The defendant denied the claim and counterclaimed for eviction of the 2nd plaintiff from LR No. Suna West/Wasimbete/1588 and a permanent injunction. The court framed three issues: locus standi, limitation of the fraud plea, and entitlement to relief. It held that the plaintiffs' grants covered only the estates of deceased 2 and 3, not the estate of deceased 1 who allegedly owned the land, so they lacked locus standi for that estate. The fraud claim, being founded on tort, was statute-barred under section 4(2) of the Limitation of Actions Act, registration having occurred in 1985 and suit filed in 2013. Although customary trusts may override registered title, the plaintiff failed to establish the elements in the Kiebia case. The defendant proved lawful acquisition of title and his counterclaim. The plaintiffs' suit was dismissed and judgment entered for the defendant on the counterclaim, including eviction, injunction and costs.

Key legal issues

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01

Whether the 1st plaintiff had locus standi to institute the suit on behalf of the estate of Kathethi Nyakogra (deceased 1)

Holding

The plaintiffs were legal representatives only of the estates of deceased 2 and 3, not of deceased 1, and therefore lacked locus standi to sue for that estate.

Reasoning

The court examined PExhibits 1 and 2, grants issued under section 54 of the Law of Succession Act, and found they related only to the estates of deceased 2 (Lucas Ngwala Kathethi) and deceased 3 (Joanes Tharoge Kathethi). Although the plaint pleaded that the land belonged to deceased 1, the plaintiffs held no grant for his estate. Relying on Trouistik Union International v Jane Mbeyu and related authorities, the court held that only a legal representative of the specific estate may sue for it.

p. 3
02

Whether the plea of fraud was barred by limitation

Holding

The suit, being founded on tort, was statute-barred under section 4(2) of the Limitation of Actions Act as registration had occurred on 24 April 1985 and the suit was filed in November 2013.

Reasoning

PExhibit 3 showed registration of the suit land in the names of the 2nd plaintiff and the defendant on 24 April 1985. The fraud claim was a tortious claim; under section 4(2) of the Limitation of Actions Act such claims must be brought within three years of accrual. The lapse of some 28 years rendered the claim statute-barred notwithstanding the fraud particulars pleaded.

p. 4
03

Whether customary trust interests survived the first registration of the suit land

Holding

Customary trusts are overriding interests under sections 25(1)(b) and 28(b) of the Land Registration Act, but the plaintiff failed to establish the elements recognised in the Kiebia case.

Reasoning

The court acknowledged the Supreme Court's decision in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, which held that customary law rights are not extinguished upon registration and identified trust elements, including membership of the family or clan of the registered proprietor. PW1 himself contended that DW1 was not a member of the family of deceased 1 and failed to establish the requisite elements; the trust claim therefore failed.

p. 4
04

Whether the defendant was entitled to the reliefs in his counterclaim

Holding

The defendant proved his counterclaim on a balance of probability and was granted eviction of the 2nd plaintiff from LR No. Suna West/Wasimbete/1588, a permanent injunction, and costs.

Reasoning

The defendant demonstrated lawful acquisition of title through DExhibits 1 to 13, including Land Control Board consent and subdivision in his favour. As registered proprietor he was entitled to protection of property under Article 40(1) of the Constitution, and the court found PW1's occupation of the land to be an unjustified intrusion, warranting preservation by way of permanent injunction under section 13(7)(a) of the Environment and Land Court Act.

p. 4

Legal principles established

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  • Legal representatives of one deceased estate cannot sue on behalf of a different deceased person's estate; letters of administration must cover the specific estate in issue.
  • Customary trusts can override registered title under the Land Registration Act, but a claimant must establish the elements recognised in the Kiebia case.
  • An action founded on tort may not be brought after three years from the date the cause of action accrued under section 4(2) of the Limitation of Actions Act.

Court orders

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  1. 1.The plaintiffs' suit commenced by way of a plaint dated 1st November 2013 and amended on 18th July 2017 is dismissed
  2. 2.Judgment entered for the defendant against the plaintiffs in terms of orders (a), (b) and (c) sought in his counterclaim dated 6th December 2013, namely eviction of the 2nd plaintiff from LR No. Suna West/Wasimbete/1588, permanent injunction restraining the plaintiffs from interfering with that parcel, and costs of the counterclaim

Authorities

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Legislation

  • Land Registration Actsection 26(1)
  • Land Registration Actsections 25(1)(b) and 28(b)
  • Evidence Act (Cap 80)sections 107 and 108
  • Law of Succession Act (Cap 160)sections 82 and 54
  • Limitation of Actions Act (Cap 22)section 4(2)
  • Civil Procedure Act (Cap 21)section 2
  • Constitution of Kenya, 2010Article 40(1)
  • Environment and Land Court Act, 2015 (2012)section 13(7)(a)
  • Environment and Land Court Practices Directions, 2014Practice Direction number 33(b)

Cases cited (12)

  • Nicodemus Mokaya Oriku -v- Monica Mwikali Mwanzia
    (2018) eKLR
  • Paskal Ouma Mudaki and 3 others -vs- Habil Ndisi and 10 others
    (2014) eKLR
  • Charles Ratemo Nyambati -vs- Jacton Ocharo and others
    Kisii ELC Petition number 33 of 2013 (UR)
  • Virani t/a Kisumu Beach Resort -vs- Phoenix of East Africa Limited
    (2004) 2 KLR at 269 to 280
  • Galaxy Paints Company Ltd -vs- Falcon Grounds Limited
    (2002) 2 EA 385
  • Trouistik Union International and another -v- Jane Mbeyu and another
    (1993) eKLR
  • Omari Kaburu -vs- ICDC
    (2007) eKLR
  • Republic =vs= Attorney General and Another ex-parte John Mugo
    (2013) eKLR
  • Abiero =vs= Thabiti Finance Company Ltd and another
    (2001) KLR 496
  • Kimani Ruchine and another =vs= Swift Rutherford Company Ltd & another
    (1976-80) KLR 1500
  • Isack M'inanga Kiebia =vs= Isaaya Theuri M'lintari and another
    (2018) eKLR
  • Zachariah Onsongo Momanyi -vs- Omurwa Onchagwa
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act, 2015 (2012), Section 13(7)(a)

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, "Michael Francis Okumu Ngwala & another v Milton Achieng Odhul [2019] KEELC 1847 (KLR)", Case Analysis (2019). Case No 84 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1847/eng@2019-07-23

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