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ELCPartially AllowedCase No 1252 of 2016· [2019] KEELC 4212 (KLR)

Joseph Omosa Otwenya v Chude Ontumba & another [2019] KEELC 4212 (KLR)

Environment and Land Court of Kenya
20 March 2019
4,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A buyer who paid in full and lived on the land for 22 years won the land in Kenya's Environment and Land Court, even though the sale agreement was technically void.

What this practically means

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Executive summary

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The plaintiff sued over 1 hectare he bought from the 1st defendant (now deceased) in 1982 out of West Kitutu/Mwagichana/1. He contended that the vendor subdivided the land and transferred his portion, later registered as West Kitutu/Mwagichana/2548, to the 2nd defendant, and that he had acquired title by adverse possession. The 2nd defendant denied the claim, asserted registered ownership, and counterclaimed for a declaration of ownership and a permanent injunction against trespass. The 1st defendant never filed a defence and died in January 2008. The court framed four issues: existence of the sale agreement, the plaintiff's possession, the legality of the 2nd defendant's registration and the plaintiff's title by adverse possession, and the reliefs to grant. It found the 1982 agreement proved, aided by PW3 who drafted and witnessed it and by an arbitral award before the D.O Mosocho confirming the sale. It found the plaintiff took possession in 1982 and developed the land. However, no Land Control Board consent to transfer was obtained, rendering the agreement void under Section 6(1)(a) of the Land Control Act and unenforceable by specific performance. Relying on Macharia Mwangi Maina and Willy Kimutai Kitilit (and distinguishing David Ole Tukai), the court held a constructive trust arose in the plaintiff's favour, and his possession constituted an overriding interest under Section 28 of the Land Registration Act. By 2004, when the transfer to the 2nd defendant occurred, the 1st defendant's title had been extinguished by limitation, so the transfer passed no interest. The plaintiff's suit succeeded; the 2nd defendant's counterclaim failed. A declaration of title by adverse possession issued, the Registrar was ordered to cancel the 2nd defendant's title and issue title to the plaintiff, and each party bore their own costs.

Key legal issues

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01

Existence of the sale agreement

Holding

The court found the 1982 sale agreement between the plaintiff and the 1st defendant was proved and that the plaintiff paid the full purchase price

Reasoning

PW3 prepared and witnessed the agreement (PEx.1) and the payment of Kshs. 22,200/=. The clan elders' arbitral award before the D.O Mosocho, upheld on review by the court, also found an agreement existed. On that evidence the court was satisfied the parties concluded a binding sale agreement, which the plaintiff honoured by paying the purchase price in full.

p. 3
02

Effect of absence of Land Control Board consent

Holding

The sale agreement was null and void for want of Land Control Board consent, but a constructive trust arose in the plaintiff's favour following Kitilit v Kibe

Reasoning

Section 6(1)(a) of the Land Control Act renders unconsented transactions void. However, following Macharia Mwangi Maina and Willy Kimutai Kitilit (and departing from David Ole Tukai), equity may temper the statute: where the purchaser paid and was let into possession, a constructive trust arises, avoiding the injustice of vendors using the statute to resell the same land.

p. 5
03

Adverse possession and overriding interest

Holding

The plaintiff acquired title by adverse possession and/or prescription; his possession was an overriding interest binding the 2nd defendant's registration

Reasoning

The plaintiff occupied from 1982, so by the 2004 transfer to the 2nd defendant the 1st defendant's title was already extinguished under the Limitation of Actions Act. Trusts and rights under limitation laws are overriding interests under Section 28 of the Land Registration Act, requiring no noting on the register, so the transfer passed no effectual interest.

p. 5

Legal principles established

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  • A contract rendered void for want of Land Control Board consent may still ground a constructive trust or proprietary estoppel where the purchaser paid the price and was let into possession
  • Possession under a sale gives the purchaser an overriding interest under Section 28 of the Land Registration Act, and a vendor's title is extinguished by 12 years' adverse possession under the Limitation of Actions Act

Court orders

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  1. 1.A declaration that the plaintiff is entitled to be registered as the owner of land parcel West Kitutu/Mwagichana/2548 having acquired title by way of adverse possession and/or prescription
  2. 2.The land registrar, Kisii is directed to cancel the title in respect of land parcel West Kitutu/Mwagichana/2548 in the name of Barnaba Oyaro Obiero and to issue a title thereof in the name of the plaintiff, Joseph Omosa Otwenya
  3. 3.The Deputy Registrar of the court is authorized to execute any necessary and/or appropriate documents to give effect to the judgment
  4. 4.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Control ActSection 6(1)(a)
  • Land Registration ActSection 28
  • Limitation of Actions ActNot specified
  • Judicature ActSection 3
  • Law of Contract ActSection 3(3)
  • Land ActSection 38(2)
  • Constitution of KenyaArticles 10(1)(b), 10(2)(b), 159(2)(e); Sixth Schedule (Transitional and Consequential Provisions), Clause 7

Cases cited (3)

  • Macharia Mwangi Maina & 87 Others -vs- Davison Mwangi Kagiri
    [2014] eKLR
  • David Ole Tukai -vs- Francis Arap Muge & 2 Others
    [2014] eKLR
  • Willy Kimutai Kitilit -vs- Michael Kibe
    [2018] eKLR – Eldoret CACA No. 51 of 2015
Jurisdiction invoked
Original civil jurisdiction of the High Court (Environment and Land Court) over land title and adverse possession claims (not expressly cited in judgment)

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, "Joseph Omosa Otwenya v Chude Ontumba & another [2019] KEELC 4212 (KLR)", Case Analysis (2019). Case No 1252 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4212/eng@2019-03-20

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