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ELCPartially AllowedCivil Case No. 137 of 2013· [2020] KEELC 1312 (KLR)

Godfrey Ouma Nandieki v Bathlomew Musumba [2020] KEELC 1312 (KLR)

Environment and Land Court
24 September 2020
2,656 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 land a father gifted to his son cannot be sold to someone else—the buyer takes it subject to the son's claim.

What this practically means

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Executive summary

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The plaintiff sought a declaration that he owned L.R No. Bukhayo/Buyofu/197 by adverse possession, or alternatively that the defendant as registered owner held it in trust for him, plus an order compelling transfer and costs. The defendant's own suit (HCC No. 3 of 2006) for vacant possession was consolidated with the plaintiff's claim and stood as his counter-claim. The plaintiff testified that his father gave him the land in 1987, on which he lived and buried his wife, only discovering in December 2003 that the father had sold it to the defendant. The defendant said he bought the land in 2003 knowing the family lived on it, and that the father undertook to resettle them elsewhere. The court held the adverse possession claim failed: the plaintiff's occupation was with his father's permission, which was never withdrawn, so time never ran, and hostility could only be counted from the 2004 Tribunal filing - under 12 years when suit was filed. However, applying the proviso to section 28 and section 30(g) of the Registered Land Act and Gathiba v Gathiba, the court found a constructive trust arose from the father's gifting, which the father was estopped from defeating; the defendant, aware of the plaintiff's occupation and with an agreement silent on the plaintiff's interest, took subject to that trust and acquired no good title. Judgment was entered in terms of prayer (c) (trust declaration); the adverse possession relief and by implication the transfer prayer were not granted; the counter-claim was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether adverse possession was established

Holding

It was not: the plaintiff occupied with his father's permission, which was never withdrawn, so the 12-year period never ran; hostility could only be counted from the 2004 Tribunal suit

Reasoning

The court held that possession under a father's permission is permissive, not hostile. The plaintiff never stated when the permission was withdrawn. Counting hostility from the 2004 Tribunal filing, 12 years had not lapsed when the suit was filed. The court relied on Mbira v Gachuhi and Patrick Magu Mwangi v Joreth Ltd on permissive possession.

p. 2
02

Whether the defendant holds the land in trust for the plaintiff

Holding

Yes. A constructive trust arose when the father gave the plaintiff the land in 1987 and the plaintiff buried his wife and built a home on it; the defendant took subject to that trust

Reasoning

The court found the father's gifting of the land created a fiduciary relationship; the father was estopped from disinheriting the plaintiff. Relying on the proviso to section 28 of the Registered Land Act (Cap 300) and section 30(g), and Gathiba v Gathiba, the registration of the defendant was subject to the trust, so the defendant acquired no good title.

p. 3
03

Whether the defendant is a purchaser for value without notice

Holding

No. He bought while aware of the plaintiff's occupation and the agreement was silent on the plaintiff's interest

Reasoning

The defendant conceded the deceased's family was living on the land when he bought it. The sale agreement did not specify vacant possession. The court held he could not rely on a purchaser-without-notice defence where the terms of the agreement were silent on the plaintiff's interest.

p. 3

Legal principles established

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  • Possession permissive by nature cannot ground adverse possession; time begins to run only when possession becomes hostile/non-permissive
  • A purchaser with notice of an existing interest or occupation takes subject to that interest; registration does not extinguish a trust arising from a fiduciary customary gift

Court orders

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  1. 1.Judgment entered for the plaintiff in terms of prayer (c) of the Originating Summons, i.e. a declaration that the defendant's title over Bukhayo/Buyofu/197 is held in trust for the plaintiff
  2. 2.The defendant's counter-claim dismissed on the ground that the defendant did not acquire a good title
  3. 3.Costs of the Originating Summons and the counter-claim awarded to the plaintiff

Authorities

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Legislation

  • Registered Land Act (Cap 300)Section 28 (proviso)
  • Registered Land Act (Cap 300)Section 30(g)

Cases cited (5)

  • Mbira Vs Gachuhi
    (2002) EALR 137
  • Jandu Vs Kirplal & Another
    [1975] E.A 225
  • Mtana Lewa Vs Kahindi Ngala Mwangandi
    [2005] eKLR
  • Patrick Magu Mwangi Vs Joreth Ltd
    (2015) eKLR
  • Gathiba Vs Gathiba
    (2001) EA 342
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land claims; adverse possession and trust over registered land)

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, "Godfrey Ouma Nandieki v Bathlomew Musumba [2020] KEELC 1312 (KLR)", Case Analysis (2020). Civil Case No. 137 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1312/eng@2020-09-24

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