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ELCPartially AllowedCivil Case No. 65 of 2015· [2020] KEELC 1250 (KLR)

Joseph Owino Ochieng v John Odhiambo [2020] KEELC 1250 (KLR)

Environment and Land Court
24 September 2020
2,533 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 a registered landowner's title remains subject to customary trust rights of families who historically occupied and buried their kin on the land.

What this practically means

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Executive summary

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The plaintiff, by an amended originating summons, sought determination of questions concerning L.R Bunyala/Mudembi/10, principally whether he was entitled to be registered as proprietor of a portion of it by adverse possession, alleging the land was ancestral land originally allocated to his grandmother Monica Oyuyo and occupied and settled by his forebears before the 1972 adjudication. The defendant asserted absolute registered proprietorship acquired through succession from his father, denying the plaintiff any interest and contending the plaintiff lived on parcel No. 9 and only trespassed in 2010. At trial, the plaintiff called three witnesses who testified that his parents lived on and were buried on the suit land and that clan elders had planted boundaries separating the two families; the defendant called two witnesses. The court framed the claims as both adverse possession and customary trust. The adverse possession claim failed: time could not run in the plaintiff's favour because he gave no date of birth or evidence of when he delinked from his father, and he did not sue on behalf of his father's or grandmother's estate. The customary trust claim succeeded: the evidence that his parents and grandmother occupied and were buried on the land was uncontroverted, and under section 28(b) of the Land Registration Act, 2012 customary trusts are overriding interests. The court, relying on the Supreme Court's endorsement of customary trust claims in the Kiebia case, held the defendant's registration subject to the plaintiff's customary rights. Judgment was entered for the plaintiff on the portion he occupies, with its extent (alleged as 1½ of the parcel) to be confirmed by the County Land Surveyor, Busia, and mention set for 26/11/2020 for final orders after the surveyor's report.

Key legal issues

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01

Whether the plaintiff proved adverse possession

Holding

The claim failed because the plaintiff did not establish the requisite period of open and uninterrupted occupation in excess of 12 years.

Reasoning

The register for parcel No. 10 was opened on 2/10/1985, but adverse possession in favour of a person born on the land runs only from when he disconnects from depending on his father, i.e. attains majority. The plaintiff gave no date of birth and no evidence of when his first house was built. He also did not sue on behalf of his father's or grandmother's estate, so their occupation could not count towards his claim.

p. 2
02

Whether the plaintiff proved a customary trust over the suit land

Holding

The claim succeeded; the plaintiff is entitled to the portion utilised by his parents under customary practices and the defendant's registration is subject to those customary rights.

Reasoning

The plaintiff's pleadings encompassed ancestral land and occupation of the parcel by Clement Adongo's family before adjudication and burial on it. The defendant did not controvert the evidence that the plaintiff's parents and grandmother lived on and were buried on the suit land. Section 28(b) of the Land Registration Act, 2012 preserves trusts including customary trusts, and the court adopted the Supreme Court's endorsement of customary trust claims.

p. 3
03

Whether the plaintiff deviated from his pleadings by leading customary trust evidence

Holding

No; the pleadings from paragraph 1 of the Originating Summons already embraced ancestral land and pre-adjudication occupation and burial, so the customary trust claim was properly before the court.

Reasoning

The court held it misleading for the defendant to allege deviation, since the Originating Summons expressly raised ancestral land and occupation by the plaintiff's forebears before the 1972 adjudication. The defendant, apart from asserting absolute ownership by transmission, led no evidence to displace that occupation and burial evidence.

p. 3
04

Whether the plaintiff needed letters of administration to bring the claim

Holding

No; having established that his parents lived on a portion of the suit land, the plaintiff could claim the land utilised by them through customary practices without letters of administration.

Reasoning

The court distinguished the requirements of an adverse possession claim (which requires delinking from one's father) from a customary trust claim founded on ancestral occupation. Since the trust claim is grounded in the plaintiff's own occupation and that of his parents under customary practice, no grant of representation was necessary to sustain it.

p. 3

Legal principles established

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  • Trusts, including customary trusts, are overriding interests under the Land Registration Act and are not excluded by the title registration
  • A claimant who has proved occupation of a portion of registered land by himself and his parents may claim it through customary trust without letters of administration, and the registered owner's title is subject to those customary rights
  • Where a plaintiff has given evidence that he lives on the suit parcel, no surveyor's report is needed; if the defendant contends otherwise, the burden shifts to the defendant

Court orders

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  1. 1.Judgment entered for the plaintiff that he is entitled to a portion of the suit title Bunyala/Mudembi/10 which he is in occupation of
  2. 2.The size of the portion awarded to be confirmed by the County Land Surveyor, Busia County, directed to visit the suit land to ascertain whether the portion occupied is 1½ of the entire land or otherwise, the cost to be met by the plaintiff
  3. 3.Mention on 26/11/2020 for final orders after the County Land Surveyor's report is filed

Authorities

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Legislation

  • Registered Land Act (Cap 300)Section 30(g)
  • Land Registration Act, 2012Section 28(b)

Cases cited (3)

  • Kweyu Vs Omutut
    (1990) KLR 709
  • Isack M'mwanga Kiebia Vs Isaaya Theuri & Ano
    (2018) eKLR
  • Mbui Mukangu v. Gerald Mutwiri Mbui
    (2004) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act over a claim to land parcel L.R Bunyala/Mudembi/10

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 Owino Ochieng v John Odhiambo [2020] KEELC 1250 (KLR)", Case Analysis (2020). Civil Case No. 65 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1250/eng@2020-09-24

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