Priska Anyango Ojuang’ & another v Henry Ojwang’ Nyabende [2019] KEELC 2719 (KLR)
The bottom line
#A Kenyan court ruled that a Land Disputes Tribunal had no power to take away someone's registered land, cancelled its award, and ordered the occupier to stop trespassing.
What this practically means
#Executive summary
#Key legal issues
#Plaintiffs' capacity/locus standi
The grant of letters of administration vested the Plaintiffs with capacity to sue notwithstanding absence of a confirmed grant
The Plaintiffs produced a grant of letters of administration issued on 3rd March 2008 in Kisumu H.C. Succ. Cause No. 681 of 2007. Although no certificate of confirmation of grant with a schedule of distribution was availed, section 82 of the Law of Succession Act empowers personal representatives to enforce causes of action surviving the deceased. The Defendant's contrary assertion was unsupported by evidence and treated as unsubstantiated allegation.
Jurisdiction of the Land Disputes Tribunal
The Tribunal's award directing subdivision of the registered land and registration of 8 hectares in the Defendant's favour was beyond its jurisdiction and null and void; the lower court's adoption order was equally a nullity
The award's effect was to excise 8 hectares from the registered proprietor's title and confer it on the Defendant and his family. Following the cited Court of Appeal authorities, such a dispute concerns title to land and falls outside section 3(1) of the Land Disputes Tribunal Act. The lower court was nonetheless obligated to adopt the award under section 7(2), but adopting a null award produced a nullity.
Limitation
The Plaintiffs' suit was not time barred as the Defendant's claim of ownership began in 1998, within twelve years of filing
The plaint averred that the Defendant began claiming a portion of the land in 1998 by cultivating it. The suit was filed in 2011, only about four years later (per the judgment's computation), which is within the twelve-year window for recovery of land under section 7 of the Limitation of Actions Act. The Defendant's plea of 38 years was not supported by the pleadings.
Adverse possession, constructive trust and trespass
Adverse possession was not pleaded and could not be raised via submissions; no constructive trust was established; the Defendant's occupation of 2.05 hectares was trespass
The Defendant never pleaded adverse possession, so it could not be founded on submissions alone. Having failed to lodge objections under section 29 of the Land Adjudication Act, and with no evidence of a relationship between the families, no constructive or customary trust could be inferred. Section 26(1) of the Land Registration Act protects the registered proprietor, so the Defendant's entry without consent was trespass justifying a permanent injunction.
Legal principles established
#- A Land Disputes Tribunal has no jurisdiction to make an award that cancels title to registered land or orders its subdivision and registration in favour of another; such an award is a nullity and the order adopting it is equally a nullity
- A grant of letters of administration clothes personal representatives with power to enforce causes of action surviving the deceased even before confirmation of the grant
- Adverse possession cannot be raised for the first time in written submissions without being pleaded
- A person named in a certificate of title is to be taken as the absolute and indefeasible proprietor until the title is successfully impugned under section 26(2) of the Land Registration Act
Court orders
#- 1.Declaration that the decision of the District Land Disputes Tribunal Case No. SYA/521/98, adopted in Siaya SRM Civil Suit No. 160 of 1999, was made without jurisdiction and is null and void, as is the order adopting it
- 2.Permanent injunction restraining the Defendant, his family, servants, agents or proxies from surveying, subdividing, entering, occupying, cultivating, developing or interfering with land parcel Siaya/South Gem/Gombe/375 or the Plaintiffs’ quiet possession thereof
- 3.Costs of the suit to the Plaintiffs with interest
- 4.Refusal of general damages for trespass
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (article 162(2)(b) of the Constitution); suit transferred from the High Court (formerly HCCC No. 199 of 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Priska Anyango Ojuang’ & another v Henry Ojwang’ Nyabende [2019] KEELC 2719 (KLR)", Case Analysis (2019). ELC Case No. 743 of 2015 (Formerly HCCC No. 199 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2719/eng@2019-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.