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ELCPartially AllowedELC Case No. 79 of 2018· [2021] KEELC 401 (KLR)

Joseph Wanjala Oduba v Pascal Okumu Kaburu & 2 others [2021] KEELC 401 (KLR)

Environment and Land Court
14 December 2021
AOA. Omollo
3,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court ruled that land co-owners who never actually lived on the family property held it in trust for the family that did, so their names will be struck off the register.

What this practically means

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Executive summary

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The plaintiff, Joseph Wanjala Oduba, sued for cancellation of titles Bunyala/Bulemia/4164 to 4169, created out of Bunyala/Bulemia/188, in which he, his father Oduba Ndubi and Peter Were were registered as co-owners holding one-third shares each. The defendants, representatives of Peter Were's estate, pleaded that the plaintiff's registration was in trust for their family, and their plaint in consolidated ELC No. 82 of 2018 seeking rectification of the register was adopted as a counterclaim. The court found the subdivision of 26/6/2014 excluded the two co-registered owners and exceeded Peter Were's registered entitlement, contrary to section 91(6) of the Land Registration Act, which would ordinarily have entitled the plaintiff to his orders. However, the defendants proved a customary trust: the plaintiff's family were welcomed as flood refugees in 1961, settled on parcel 193, never occupied parcel 188, and the plaintiff's registration was in trust for the defendants' family, satisfying the Supreme Court's test in Isack M'Inanga Kieba. The Tribunal award of 2009 could not found res judicata since the Tribunal lacked jurisdiction over trust claims. The plaintiff's suit was dismissed; the court declared that Oduba Ndubi and the plaintiff held the 2/3 joint interest in trust for Peter Were, ordered the Land Registrar to strike out their names and retain Peter Were as sole proprietor, with each party bearing their own costs. Judgment delivered on 14 December 2021 by A. Omollo, J.

Key legal issues

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01

Validity of the subdivision without co-owners' consent

Holding

The defendants' subdivision of the suit title into new numbers without the consent of the two previously registered owners contravened section 91(6) of the Land Registration Act

Reasoning

The court found entries 6, 7 and 8 of the green card transferred over 10 acres to the beneficiaries of Peter Were although his registered share was only 4 acres (one-third of 3.6ha). The subdivision on 26/6/2014 excluded the two other registered co-owners, contrary to section 91(6) of the Land Registration Act requiring written consent of remaining tenants in common. On this basis alone the plaintiff would have been entitled to his prayers.

p. 4
02

Proof of customary trust

Holding

The defendants proved a customary trust; the registration of the plaintiff and his father was in trust for the defendants' family

Reasoning

Applying the Supreme Court's test in Isack M'Inanga Kieba, the court found the plaintiff's family were flood refugees welcomed onto the land in 1961, settled on parcel 193, and never lived on or used parcel 188. Their registration as co-owners of parcel 188, discovered only in 2008, could only have been in trust for the defendants' family. The trust claim was never determined by the Tribunal.

p. 4
03

Res judicata based on the Tribunal award

Holding

The Tribunal decision could not render the trust claim res judicata because the Tribunal lacked jurisdiction over customary trust claims

Reasoning

The plaintiff relied on the Land Disputes Tribunal award in Land Case No. 98 of 2009 directing that the land remain registered in three names. The court held the question of trust was never for determination before the Tribunal, which lacked jurisdiction to entertain such a claim; only a determination by a court of competent jurisdiction can found res judicata.

p. 4

Legal principles established

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  • Customary trust is a question of fact that must be pleaded and proved through evidence
  • An issue can only be res judicata if it was heard and determined by a court of competent jurisdiction
  • A tenant in common may not deal with their undivided share except with the written consent of the remaining tenants in common

Court orders

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  1. 1.The plaintiff's (Joseph Wanjala Oduba) case in this file be and is hereby dismissed
  2. 2.A declaration that the late ODUBA NDUBI alias PATRICK OTUBA NDUBI as represented by JOSEPH WANJALA ODUBA together with JOSEPH WANJALA ODUBA held and continue to hold the joint interest of ownership of 2/3 of land parcel No. BUNYALA/BULEMIA/188 in trust for PETER WERE as represented by the plaintiff
  3. 3.An order directing the County Land Registrar to strike out the names of ODUBA NDUBI alias PATRICK OTUBA NDUBI and JOSEPH WANJALA ODUBA from the register of land parcel BUNYALA/BULEMIA/188, on 2/10/1985 and on 25/8/2002, and to retain the name of PETER WERE as the sole proprietor in respect thereof
  4. 4.Each party to bear their costs of the suit

Authorities

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Legislation

  • Land Registration Actsection 91(6)

Cases cited (3)

  • Owners of Motor Vessel "Lillian S" vs. Caltex Oil (K) Limited
    (1989) eKLR
  • Esther Nyamweru Waruhiu & another vs. George Kangethe Waruhiu
    (2019) eKLR
  • Isack M'Inanga Kieba Vs Isaaya Theuri M'Lintari & Ano
    (2018) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (consolidated suit including counterclaim in ELC No. 82 of 2018)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Joseph Wanjala Oduba v Pascal Okumu Kaburu & 2 others [2021] KEELC 401 (KLR)", Case Analysis (2021). ELC Case No. 79 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/401/eng@2021-12-14

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