Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Court Appeal Number 28 of 2021· [2021] KEELC 84 (KLR)

Nashon Onyango Otieno v George Onyango Otieno [2021] KEELC 84 (KLR)

Environment and Land Court
2 December 2021
AKA. Y. Koross
2,513 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A land title certificate in Kenya does not override family customary claims, and only someone actually in possession can sue for trespass.

What this practically means

#

Executive summary

#
This is a first appeal to the Environment and Land Court at Siaya against a judgment of a Senior Resident Magistrate dated 19 June 2019 in Siaya PM ELC No. 177 of 2018. The appellant, registered proprietor of Central Alego/Ojuando B2/338 through a confirmation of grant in a succession cause, had sued the respondent for trespass, seeking eviction and a permanent injunction. The trial court dismissed the suit and ordered the land subdivided among the appellant, the respondent and Thomas Ogola Obara as beneficiaries of the estate of Oloo Oloo, who died intestate without a wife, child or parents. The appeal argued that the trial court had made a probate determination in a land case. The court identified four issues: the trial court's jurisdiction over probate matters, the indefeasibility of the appellant's title, the sustainability of a trespass claim, and costs. Holding that succession and distribution of estates under the Law of Succession Act belong to probate courts, the court found the trial court's redistribution order legally untenable. However, the appellant's title was subject to overriding interests under Sections 28 and 62(1) of the Land Registration Act, including the respondent's customary trust and prior possession dating from on or before May 2016. As trespass requires possession, the appellant's claim was unsustainable. The appeal was partially successful: the trial judgment was set aside and the appellant's suit dismissed with costs to the respondent, with each party bearing its own costs of the appeal.

Key legal issues

#
01

Whether the trial ELC had jurisdiction to make a probate determination

Holding

The trial court erred in redistributing the estate of Oloo Oloo in an ELC case; succession matters are for probate courts under the Law of Succession Act

Reasoning

The Constitution, the Environment and Land Court Act and the Magistrates Courts Act confer land jurisdiction on the ELC, while probate jurisdiction derives from Section 2 of the Law of Succession Act. Practice directions expressly reserve inheritance and distribution cases to the High Court and magistrates' courts. The predominant purpose test confirms the trial court's subdivision order was in substance a succession determination, which was ultra vires.

p. 3
02

Whether the appellant's title was indefeasible

Holding

The appellant's title was not absolute; he held the suit property subject to unregistered overriding interests of the respondent and others

Reasoning

Sections 28 and 62(1) of the Land Registration Act together render a registered proprietor's title subject to unregistered but enforceable rights such as customary trusts, limitation of actions and prescription. Since the respondent was a relative in long possession claiming customary rights and gifting, the appellant's certificate of confirmation of grant did not extinguish those interests. The court refrained from probing the succession process itself.

p. 3
03

Whether the appellant could sustain a claim for trespass

Holding

No - trespass to land requires possessory rights, and the respondent was in lawful possession before the appellant acquired title

Reasoning

Relying on Halsbury's Laws of England, the court held that trespass is an injury to a possessory right, and an owner without possession cannot sue in trespass. The respondent took possession on or before May 2016, before the appellant obtained the confirmation of grant on 22/02/2018. The appellant's tortious claim therefore failed and the prayers for eviction and injunction were refused.

p. 3

Legal principles established

#
  • The ELC lacks jurisdiction to redistribute or administer a deceased person's estate; succession and distribution of land under the Law of Succession Act belong to the probate courts
  • A registered proprietor's title under the Land Registration Act is subject to unregistered overriding interests, including customary trusts
  • Only a person in possession at the time of the trespass may sue in trespass to land; a mere right of property without possession is insufficient
  • Where concurrent jurisdictions overlap, the predominant purpose test determines which forum is competent

Court orders

#
  1. 1.The judgment of the trial court is set aside and substituted with an order dismissing the appellant's suit with costs to the respondent
  2. 2.Each party shall bear their own costs of this appeal

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Magistrates Courts ActSection 9
  • Law of Succession Act, Cap. 160Sections 2, 39, 76
  • Land Registration ActSections 26, 28, 62(1)
  • Practice directions on proceedings in the environment and land courts

Cases cited (14)

  • Charles C. Sande v Kenya Co-operative Creameries Limited
    Civil Appeal No. 154 of 1992
  • Emfil Ltd v Registrar of Titles Mombasa & 2 others
    (2014) eKLR
  • Davy v Garrett
    (1878) 7 Ch.D 473 at 489
  • Joseph Marubu vs Kahindi Clinton Baya
    (2014) eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] eKLR
  • Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another
    [2018] eKLR
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Barnabas Biwott v Thomas Kipkorir Bundotich
    [2018] eKLR
  • Owners of the Motor Vehicle M.V. Lillians versus Caltex Oil (Kenya) Limited
    (1989) KLR 1
  • Beatrice Wambui Kiarie & 2 others vs Tabitha Wanjiku Ng’ang’a & 9 others
    (2018) eKLR
  • Isaac Kinyua & 3 Others v Hellen Kaigongi
    [2018] eKLR
  • Wilson Mthui Mutungu v Beatrice Gathoni & Another
    (2016) eKLR
  • Republic v Chief Land Registrar & Another, JR ELC No. 11 of 2010
    [2019] eKLR
  • Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another
    [2016] eKLR
On appeal from
Siaya Principal Magistrates Court (ELC)
Siaya Principal Magistrates ELC Number 177 of 2018
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010; Section 13 of the Environment and Land Court Act; Section 9 of the Magistrates Courts Act (first appeal from magistrates' court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (7)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Nashon Onyango Otieno v George Onyango Otieno [2021] KEELC 84 (KLR)", Case Analysis (2021). Environment and Land Court Appeal Number 28 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/84/eng@2021-12-02

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