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ELCDismissedELCA Case No. 9 of 2020· [2020] KEELC 388 (KLR)

Michael Eddy Wetaba v Alex Osundwa Tukwa [2020] KEELC 388 (KLR)

Environment and Land Court
9 December 2020
2,222 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 ruled that even a registered landowner cannot evict a relative who was settled on the land before registration, because equity created a constructive trust.

What this practically means

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Executive summary

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The appellant, Michael Eddy Wetaba, appealed to the Environment and Land Court at Kakamega against a magistrates' court decision dismissing his claim for eviction of his step brother, the respondent Alex Osundwa Tukwa, from land parcel East/Wanga/Lubinu/4862, of which the appellant was the registered proprietor. The appellant advanced eleven grounds of appeal, principally that the trial magistrate disregarded the indefeasibility of title under sections 24 and 26 of the Land Registration Act, wrongly elevated a licence over the rights of the absolute proprietor, and ignored an agreement by the respondent to relocate to alternative land. The respondent supported the trial judgment, urging the first appellate court to re-evaluate the evidence. The court found as a fact that the appellant was the registered proprietor, but that the respondent was put into possession in 2000, before the transfer into the appellant's name, established a homestead, buried two children there, and had not been given alternative land. Relying on the trust jurisprudence in Twalib Hatayan and Peter Ndungu Njenga, the court held that a constructive trust, together with proprietary estoppel, arose in favour of the respondent and that the appellant could not renege by demanding eviction in 2019. Applying the settled rule against interference with trial court findings of fact, the court found the magistrate's decision judiciously arrived at, dismissed the appeal, and made no orders as to costs.

Key legal issues

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01

Indefeasibility of title under the Land Registration Act

Holding

The court acknowledged the appellant's registration as absolute proprietor but held that title is subject to equitable interests such as constructive trusts and proprietary estoppel

Reasoning

The court recited sections 24(a) and 26(1) of the Land Registration Act conferring absolute and indefeasible ownership on the registered proprietor, subject to challenge only for fraud, misrepresentation, or illegally, unprocedurally or corruptly acquired title. However, applying trust doctrine, it found the appellant's title was subject to a constructive trust arising from the respondent's prior possession.

p. 2
02

Whether a constructive trust arose in favour of the respondent

Holding

Yes - the equitable doctrines of constructive trust and proprietary estoppel were applicable and enforceable against the registered proprietor

Reasoning

The respondent, the appellant's step brother, was put into possession of the suit property in 2000 before the appellant transferred it into his own name, established a homestead, buried two children there, and received no alternative land. Relying on Twalib Hatayan and Peter Ndungu Njenga, the court found equity imposed a constructive trust which the appellant could not defeat by demanding eviction in 2019.

p. 3
03

Appellate interference with trial court findings of fact

Holding

The appeal court declined to interfere because the trial magistrate's decision was judiciously arrived at

Reasoning

The court restated the classic rule that an appellate court will not ordinarily disturb findings of fact unless they were based on no evidence, on a misapprehension of the evidence, or the trial court demonstrably acted on wrong principles. Finding none of these defects, the court held the trial magistrate's decision was judiciously arrived at and dismissed the appeal.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person, and a certificate of title is prima facie evidence of absolute and indefeasible ownership subject only to challenge on grounds of fraud, misrepresentation, or acquisition illegally, unprocedurally or through a corrupt scheme
  • Where a person is put into possession of land before it is transferred and registered in another's name, a constructive trust arises which the registered proprietor cannot renege on
  • An appellate court will not ordinarily interfere with the findings of fact of a trial court unless they were based on no evidence, on misapprehension of the evidence, or on wrong principles

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 26
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)(a) and (b)
  • Trustee Actdefinition of trust and trustee

Cases cited (7)

  • Elijah Makeri Nyang'wara vs. Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Raurenjia Nguru Nujiri & Another vs. Jane Terry Wanjiru Mbogo
    Embu ELC No. 51 of 2017 eKLR
  • Esiroyo vs. Esiroyo & Another
    [1973] EA 288
  • Oluoch Eric Gogo vs Universal Corporation Ltd
    (2015) eKLR
  • Mwanasokoni vs Kenya Bus Service Limited
    (1982-88) 1 KAR 278
  • Twalib Hatayan Twalib Hatayan & Another vs. Said Saggar Ahmed Al-Heidy & Others
    (2015) eKLR
  • Peter Ndungu Njenga vs. Sophia Watiri Ndungu
    (2000) eKLR
On appeal from
Magistrates' Court
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (Environment and Land Court)

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, "Michael Eddy Wetaba v Alex Osundwa Tukwa [2020] KEELC 388 (KLR)", Case Analysis (2020). ELCA Case No. 9 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/388/eng@2020-12-09

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