Joseph Mjune Ongaro v Washington Ochieng’ Ongaro [2021] KEELC 1363 (KLR)
The bottom line
#The court rejected a brother's adverse possession claim but awarded him a third of family land under customary trust, even though he never pleaded it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant's occupation was adverse possession
The claim failed; the Applicant was born on the land and needed to prove when his occupation became hostile to the registered owner
All witnesses, including the Respondent, confirmed the Applicant lived on the land since birth, but the Respondent testified the stay was permissive pending inheritance. The homestead of the parties' father was on the land, so occupation was the natural family set-up. The Applicant bore the burden of showing when time began to run adversely and led no such evidence.
Whether the Applicant is entitled to the land under customary trust despite not pleading it
Yes; the court entered judgment declaring the Respondent registered in trust and awarded the Applicant a 1/3 share
Although customary trust was not pleaded as required by Order 2 rule 10, the issue arose from witness statements and the Respondent's own affidavits, so the court could rely on it under Odd Jobs v Mubia. Applying the Kiebia criteria, the land was family land, the parties are siblings, and the Respondent was registered as eldest son with the family homestead on it, so a trust was presumed. The Applicant was one of three sons and got a 1/3 share.
Effect of absence of trust entry on the register
Trusts, including customary trusts, are overriding interests that need not be noted in the register
At the time of suit, section 30 of the repealed Registered Land Act provided that trusts were overriding interests; currently section 28(b) of the Land Registration Act does the same. The Respondent's argument that the claim fails because no trust was noted on the register was therefore without basis.
Legal principles established
#- A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue was left to the court for decision
- Customary trusts are overriding interests that subsist and affect registration of land without being noted in the register
- A claimant for adverse possession must demonstrate hostile, peaceful, continuous and uninterrupted occupation in excess of twelve years
Court orders
#- 1.Declaration that the registration of the Respondent as owner of L.R Samia/Budongo/268 (later subdivided into 2167 and 2168) was in trust for his benefit and the benefit of the Applicant
- 2.The Applicant is entitled to the equivalent of 1/3 share in the suit title Samia/Budongo/2168
- 3.The Respondent to execute all documents necessary for the transfer of the 1/3 share in the suit property in favour of the Applicant within forty five (45) days from the date of delivery of the judgment
- 4.In default, the Deputy Registrar shall execute the documents to facilitate registration of the 1/3 share in the name of the Applicant
- 5.The County Land Surveyor Busia County to visit land parcel SAMIA/BUDONGO/2168, pick the 1/3 share acreage and subdivide the suit land between the parties
- 6.No orders as to costs, the suit being between family members
- 7.The Applicant to meet all the costs of subdivision, transfer and registration of the 1/3 share
- Jurisdiction invoked
- Environment and Land Court jurisdiction (Article 162(2)(b) context; original suit transferred from Kakamega HCCC No. 61 of 1991)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mjune Ongaro v Washington Ochieng’ Ongaro [2021] KEELC 1363 (KLR)", Case Analysis (2021). ELC Case No. 171 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1363/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.