Kahaso Makupe Yawa & John Mwamuye Makupe (suing as the legal representative/administrator of the Estate of Makupe Yawa Mwalungo) v Omar Tsuma Baya & Lucy Tsuma [2019] KEELC 4127 (KLR)
The bottom line
#Kenya's High Court dismissed a family's bid to reclaim ancestral land sold in 1988, ruling the claim was filed decades too late and the buyers had fully paid.
What this practically means
#Executive summary
#Key legal issues
#Limitation of the plaintiffs' claim
The plaintiffs' prayers for declaration of non-binding agreement and recovery of possession were time barred, the claim for breach accruing on 30th September 1988 and expiring by 29th September 1994, and the land claim expiring after 12 years, both during the seller's lifetime
The court calculated time from the date the Land Control Board consent was obtained, as pleaded by the plaintiffs themselves. No suit was filed by the deceased or his administrators, and no extension of time was sought. The court held the limitation argument raised by the plaintiffs in fact favoured the defendants.
Size of land sold and payment of purchase price
The defendants proved they purchased 7 acres (3 from Irungu's portion 211 B and 3 plus 1 additional acre from the deceased) and paid the entire purchase price; the plaintiffs failed to discharge the burden of proving non-payment
The consent letter showed plot 211 had been subdivided into 211 A (9 acres) and 211 B (3 acres), corroborating the two distinct sale agreements. The Chief who witnessed the agreements was not called to rebut this, and DW3 confirmed payment of the balance in the deceased's presence.
Trust in favour of defendants
The plaintiffs hold the title to the 7 acres in trust for the defendants by virtue of the defendants' occupation and use
Having found the sale complete and the price paid, and the defendants in long occupation, the court imposed a trust requiring the plaintiffs, as registered proprietors, to transfer the 7 acres to the 1st defendant, with execution of transfer documents by the Deputy Registrar in default.
Amendment filed without leave
The amended defence and counter-claim filed without leave was a non-issue since the original defence and counterclaim of 11th November 2013 was properly on record and the amendment did not change the substance of the claim
The court held the original filing was not challenged as out of time and contained the same claim for declaration of ownership of the 7 acres, so the amendment caused no prejudice and did not warrant striking out.
Legal principles established
#- Actions founded on contract must be brought within six years and claims to recover land within twelve years of accrual under the Limitation of Actions Act
- The burden of proving non-payment of the purchase price lies on the party asserting it, and failure to call a material witness raises a presumption the evidence would be detrimental to that party's case
Court orders
#- 1.The plaintiffs' suit is dismissed in its entirety with costs to the defendants
- 2.Judgment entered in favour of the defendants as prayed in paragraphs (b), (c) and (d) of the counter-claim
- 3.A declaration that the plaintiffs are holding the title in trust for the benefit of the defendants in respect of the 7 acres they occupy
- 4.The plaintiffs to execute within 30 days of judgment the subdivision and transfer documents and avail necessary documents to enable registration of the 7 acres in the 1st defendant's name
- 5.In default of the plaintiffs signing the documents, the Deputy Registrar of the Court to sign them after expiry of 30 days
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahaso Makupe Yawa & John Mwamuye Makupe (suing as the legal representative/administrator of the Estate of Makupe Yawa Mwalungo) v Omar Tsuma Baya & Lucy Tsuma [2019] KEELC 4127 (KLR)", Case Analysis (2019). Land Case No. 185 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4127/eng@2019-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.