Delamier Wambogo Wambogo v Anastansia Aluoch Anino & 3 others [2019] KEELC 3974 (KLR)
The bottom line
#A Kenyan court ordered occupants off inherited land because their decades-old purchases became void without Land Control Board consent, though no damages were awarded.
What this practically means
#Executive summary
#Key legal issues
#Regularity of the Plaintiff's registration through succession
The Plaintiff's registration as proprietor of the suit parcels through transmission under the confirmed grants was regular; his title is absolute and indefeasible until challenged under Section 26 of the Land Registration Act
The green cards confirmed registration of the Plaintiff after the certificates of confirmation of grants in Kisumu H.C. Succession Cause No. 111 of 1999 and Nairobi H.C. Succession Cause No. 857 of 2003. The court found no basis to fault the process, noting no evidence of any pending appeal against the distribution of the estate.
Whether the Defendants' alleged purchases from the late Silvanus Wambogo gave them any enforceable interest
The alleged sale agreements became void for want of Land Control Board consent within six months under Sections 6 and 8 of the Land Control Act
None of the Defendants produced evidence of a registered transfer or of Land Control Board consents obtained within the statutory six-month period. The agreements therefore became void, and the buyers' only remedy lay in a refund of purchase monies under Section 7 of the Land Control Act; continued possession based on the void transactions was a statutory offence.
Whether the Defendants had acquired adverse possession
No adverse possession had accrued because entry was with the consent of the late registered proprietor's family
Entry was pursuant to alleged sale agreements, so occupation was permissive, not adverse. Further, the Plaintiff was a minor when his father died in 1986, filed succession in 1999, and became registered proprietor between 2001 and 2005; by the time the suit was filed in 2001 no adverse rights had accrued against his title.
Res judicata arising from Siaya Land Disputes Tribunal Case No. 435 of 1998
The suit is not res judicata because the Tribunal lacked jurisdiction to determine title to registered land and its award was null and void
Section 4 of the Land Disputes Tribunal Act did not extend to questions of title to registered land. The Tribunal's award in favour of the 3rd Defendant was therefore ultra vires and void ab initio, and a void award cannot bar the suit under Section 7 of the Civil Procedure Act.
Mesne profits and damages for trespass
Mesne profits and damages were not awarded for lack of evidence of loss
The Plaintiff and his witnesses did not testify on the nature or amount of any loss suffered from the Defendants' use of the land, and the Plaintiff elected not to file submissions, so there was no material on which to quantify mesne profits or damages.
Legal principles established
#- Land sale agreements requiring Land Control Board consent become void if consent is not obtained within six months
- Possession under a void sale is with consent and cannot found adverse possession
- A Land Disputes Tribunal has no jurisdiction to determine title to registered land; such an award is null and void and cannot found res judicata
Court orders
#- 1.The Defendants are hereby ordered to vacate from Land Parcels North Gem/Malunga/1308, 1297 and 1294, and give vacant possession to the Plaintiff, within ninety (90) days and in default eviction orders to issue
- 2.Upon the defendants giving vacant possession of the suit lands to the Plaintiff or being evicted, an order of permanent injunction is hereby issued restraining them from entering and cultivating on the suit lands without the consent and authority of the Plaintiff
- 3.The Defendants pay the Plaintiff costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to and occupation of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Delamier Wambogo Wambogo v Anastansia Aluoch Anino & 3 others [2019] KEELC 3974 (KLR)", Case Analysis (2019). ELC Case No. 832 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3974/eng@2019-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.