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ELCPartially AllowedELCA No. 28 of 2017· [2020] KEELC 31 (KLR)

John Asuke Odongo & 15 others v Mathews Odongo Ogwang & another (Suing on behalf of Odongo Owaa Clan) [2020] KEELC 31 (KLR)

Environment and Land Court
30 January 2020
1,576 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a clan land claim because the family missed the objection deadline during land adjudication and never gave proper notice of their representative suit.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kisumu by John Asuke Odongo and 15 others against the judgment of Hon. B. Kasavuli SRM in Winam PMCC No. 119 of 2011, in which the respondents, suing on behalf of the Odongo Owaa Clan, had obtained judgment directing the appellants to transfer suit parcels to them. The respondents' case was that the appellants had been accommodated on the land while fleeing smallpox in Southern Nyanza, and their beneficial interest expired when they returned to Migori; the appellants maintained their great grandfather had settled on the land as a herds boy. Ombwayo J agreed with the trial magistrate's framing of the issues but found the magistrate erred on three material points. First, although consent to file a representative suit was not mandatory, the mandatory notice required under Order 1 rule 8 of the Civil Procedure Rules to all persons represented was never given, so the suit could not proceed on behalf of the clan, though the named respondents could sue personally. Second, the respondents had failed to lodge objections during land adjudication, rendering their suit incompetent. Third, the respondents' evidence was hearsay - PW1's grandfather, who allegedly gifted the land, died before PW1 was born - and the competing accounts were equally probable, so the claim was not proved on a balance of probabilities. The court also found the appellants had not proved lack of the trial court's pecuniary jurisdiction. The appeal was allowed with costs and the lower court suit dismissed with costs.

Key legal issues

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01

Jurisdiction of the trial court

Holding

The magistrates' court had jurisdiction; the appellants failed to prove lack of pecuniary jurisdiction

Reasoning

The appellants raised jurisdiction in their pleadings but adduced no evidence to demonstrate that the trial court lacked jurisdiction. There was no evidence of the value of the suit property, and in the absence of such evidence the magistrate was entitled to determine the case on its merits.

p. 2
02

Requirements of a representative suit under Order 1 rule 8

Holding

Consent to sue on behalf of the clan was not mandatory, but notice after filing a representative suit is mandatory and was not given; the suit survives only for the named respondents

Reasoning

The trial magistrate correctly found that consent was not mandatory. However, under Order 1 rule 8(2) the parties must give notice of the suit to all persons represented, by personal service or public advertisement as the court directs. No order under Order 1 rule 8 was obtained and no notice was issued, so the suit could not proceed on behalf of the clan, though the named respondents could still sue in their own right.

p. 2
03

Failure to lodge an objection to the land adjudication

Holding

Failure to file an objection to the adjudication rendered the respondents' suit incompetent

Reasoning

The land adjudication process had been completed and PW3 confirmed that no objection was lodged. The respondents, having slept on their rights while the adjudication process ran and the window for objections closed, could not later maintain a suit challenging the registration of the appellants as owners.

p. 2
04

Standard of proof - balance of probabilities

Holding

The respondents did not prove their claim; the parties' competing accounts of how the appellants came onto the land were equally probable

Reasoning

The respondents claimed the appellants were accommodated as refugees from smallpox in Migori and were to surrender the land, while the appellants claimed their great grandfather settled on the land as a herds boy. PW1's account was hearsay, as his grandfather who allegedly gifted the land died before PW1 was born, and PW2 and PW3 were not born when the allocation occurred. The probabilities were therefore equal.

p. 3
05

Weight of evidence - hearsay

Holding

The respondents' evidence was largely hearsay and could not sustain judgment

Reasoning

PW1's grandfather, who was said to have given the appellants the land, died before PW1 was born, so PW1 could not testify to any agreement between the forefathers. PW2 and PW3 were also not born when the appellants were allocated the parcels before 1938. The trial magistrate therefore erred in entering judgment for the respondents on that evidence.

p. 1

Legal principles established

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  • For a representative suit, notice to all persons represented, either by personal service or by public advertisement as the Court may direct, is mandatory
  • A party who does not object during the land adjudication process cannot later maintain a suit challenging the resultant titles
  • Where a party alleges that a trial court lacked pecuniary jurisdiction, evidence of the value of the property must be adduced

Court orders

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  1. 1.The appeal is allowed with costs
  2. 2.The suit in the lower court is dismissed with costs
On appeal from
Senior Resident Magistrate's Court (Winam)
Winam PMCC No. 119 of 2011
Jurisdiction invoked
Appeal from subordinate court under the Environment and Land Court Act (ELCA appeal); court was seized of the appeal against the judgment and decree of the Senior Resident Magistrate

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, "John Asuke Odongo & 15 others v Mathews Odongo Ogwang & another (Suing on behalf of Odongo Owaa Clan) [2020] KEELC 31 (KLR)", Case Analysis (2020). ELCA No. 28 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/31/eng@2020-01-30

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