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ELCPartially AllowedELC No. 554 of 2016 (Formerly HCCC No. 264 of 2011)· [2020] KEELC 2505 (KLR)

William Gechore Oremo v Pacifica Nyanchama Nyaboga & another [2020] KEELC 2505 (KLR)

Environment and Land Court of Kenya
5 March 2020
JMJ. M. MutungiJOJ Onyango
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisii court confirmed a family's ownership of inherited farmland but refused damages or costs against a relative trespasser to preserve family unity.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Dismas Oremo Mogusu, sued the defendants for trespass onto land parcel Bassi/Bosingi/1027 registered in the deceased's name, seeking a declaration of ownership, a permanent injunction, general damages for trespass, costs and interest. The defendants, close relatives of the deceased, asserted that the deceased had been registered in trust for the 1st defendant and her children and denied trespass. The 2nd defendant died during the hearing and the suit against him abated. The suit was part-heard before Okong'o J; with the parties' concurrence, the court appointed Mr. Jeremiah Onsare Soire, Senior Advocate, as mediator/arbitrator. Although mediation did not produce a settlement, the parties agreed that the mediator's record of evidence be admitted as part of the court record and that the court evaluate the evidence and enter judgment. The court framed four issues: whether the deceased was the registered owner and whether the registration was fraudulent; whether the 1st defendant had beneficial interest; whether a trust existed in her favour; and the reliefs to grant. The court found the deceased was the registered owner, having purchased the land from Nyangau Nyaboga during land adjudication, that no particulars of fraud were pleaded or proved, and that no trust or beneficial interest in favour of the 1st defendant was established. Judgment was entered for the plaintiff with a declaration and permanent injunction, but the court declined to award damages for trespass or costs against the defendant in order to foster family unity, ordering each party to bear their own costs.

Key legal issues

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01

Whether the deceased was the registered owner and whether registration was obtained fraudulently

Holding

The deceased was the registered owner; the registration was lawful and no fraud was established.

Reasoning

The search certificate and copy of title showed the deceased as registered owner with first registration on 25th March 1969 and a change of name registered on 14th June 1993. The evidence pointed to the deceased having purchased the land from Nyangau Nyaboga, with the 1st defendant herself informing her brother of its availability. He took possession, planted tea and trees, and was registered during land adjudication. No particulars of fraud were pleaded and none was proved.

p. 3
02

Whether the defendant had beneficial interest or the deceased held the land in trust for her

Holding

No beneficial interest or trust was established; the deceased held the land as absolute owner.

Reasoning

The 1st defendant did not prove any beneficial interest. Her notification of the land's availability to her brother could not create a claim. Her own son (PW6) testified the land belonged to the plaintiff's family and that she incited her children to evict them. The evidence showed the deceased bought the land, took vacant possession, utilised it as his own and was registered as owner, leaving no basis for finding a trust.

p. 3
03

What reliefs should be granted

Holding

Declaration and permanent injunction granted, but damages and costs refused to preserve family unity.

Reasoning

The plaintiff proved his case on a balance of probabilities and was entitled to judgment. Though entitled to damages for trespass and costs, the court considered the family relationship dating back to the 1960s and declined both awards to foster unity, granting only the declaration and permanent injunction with each party bearing their own costs.

p. 3

Legal principles established

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  • Allegations of fraud must be specifically pleaded and proved; fraud not pleaded or proved cannot vitiate a registered title.
  • A person registered as absolute owner following land adjudication is entitled to exclusive possession and use of the land.
  • Merely informing a relative that land is available for purchase does not create a beneficial interest or trust in the land.

Court orders

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  1. 1.A declaration that land parcel LR No. Bassi/Bosingi/1027 is lawfully registered in the name of Dismas Oremo Mogusu, now deceased, and that his estate is entitled to exclusive possession and use of the same.
  2. 2.A permanent injunction restraining the 1st defendant, her agents, servants and/or anyone claiming under her, from entering, re-entering, trespassing onto, cultivating, plucking tea leaves, interfering with and/or in any other manner dealing with the suit land.
  3. 3.Each party to bear their own costs of the suit.
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to and possession of land (Environment and Land Court Act)

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, "William Gechore Oremo v Pacifica Nyanchama Nyaboga & another [2020] KEELC 2505 (KLR)", Case Analysis (2020). ELC No. 554 of 2016 (Formerly HCCC No. 264 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2505/eng@2020-03-05

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