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ELCDismissedBungoma ELC Case (lead file; Bungoma ELC Case No 49 of 2014 stayed)· [2021] KEELC 1683 (KLR)

Charles Wakhu Otokoma v Joyce Malala & 6 others [2021] KEELC 1683 (KLR)

Environment and Land Court
30 September 2021
BOBoaz N. Olao
6,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land registered in one family member's name actually belongs to the whole family, ordering it shared instead of evicting relatives.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel BUNGOMA/KIMININI/164 measuring about 27 acres, sued his step-mother and six step-brothers seeking a permanent injunction and their eviction, alleging trespass between January and March 2013. The defendants admitted his registration but contended he was registered in 1996 by misrepresentation, that the land was purchased by their late father PIUS MALALA WAKHU, and that the plaintiff holds it in trust for the family. They also relied on a decree in Kimilili SRMC Land Case No 9 of 2011 adopting an award of the Tongaren Land Disputes Tribunal distributing the suit land. The court framed three issues: sole ownership and eviction, existence of a trust, and consequential orders. It held the Tribunal's award and the subsequent decree were nullities: the dispute before the Tribunal concerned only parcel BUNGOMA/KIMININI/156; a Tribunal under the repealed Land Disputes Tribunal Act could not determine title to registered land; the registered proprietor was not a party; and the claim was statute-barred under Section 7 of the Limitation of Actions Act. The court further found that the land was first allocated in 1965 to the plaintiff's grandfather WAKHU OTOKOMA, who had died in 1949, and that the 1996 change of the register to the plaintiff (born 1969) was a complete change of proprietorship that Section 142 of the repealed Registered Land Act could not cure. Finding the land was acquired for the family, the court held the plaintiff is a mere trustee for the family, guided by the Supreme Court decision in Isack M'Lintari and Section 18 of the Environment and Land Court Act. The plaintiff's suit was dismissed; the trust was determined and the land apportioned, giving the plaintiff 7 acres (partly in trust for his mother Cecilia Muyeyi Malala, who balloted for and paid for the land but received no share under the Tribunal award) and the defendants 2-3 acres each. The Registrar and Surveyor were directed to cancel the title and issue new titles; each party was to bear their own costs as they are family.

Key legal issues

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01

Validity of the Tongaren Land Disputes Tribunal award and the Kimilili SRMC decree

Holding

The award and decree were nullities as the Tribunal acted in excess of jurisdiction

Reasoning

The dispute before the Tribunal concerned only parcel BUNGOMA/KIMININI/156, yet the Tribunal distributed other registered parcels including the suit land. Tribunals under the repealed Act could not determine title to registered land; the registered proprietor was not a party; and the claim was statute-barred under Section 7 of the Limitation of Actions Act. A decision made without jurisdiction is a nullity.

p. 5
02

Whether rectification of the register lawfully transferred the land to the plaintiff

Holding

No; what occurred was a complete change of proprietorship which Section 142 of the repealed Registered Land Act could not cure

Reasoning

The land was first registered in the name of the deceased WAKHU OTOKOMA. The plaintiff, a different person born in 1969, could not become proprietor by a mere correction of name; the only lawful route was transmission. No transfer or transmission was evidenced, so the plaintiff's title rests on an irregular change of proprietorship.

p. 6
03

Whether the plaintiff holds the suit land in trust for the family

Holding

Yes; the plaintiff is a mere trustee holding the land in trust for the WAKHU OTOKOMA family

Reasoning

The land was allocated in 1965, before the plaintiff was born, and registered in the name of the family patriarch who had died in 1949. The name was clearly used to acquire land for the family. Guided by the Supreme Court's decision and principles of intergenerational equity under Section 18 of the ELC Act, the court found a family trust, which the defendants had pleaded.

p. 7
04

Determination of the trust and apportionment

Holding

The trust was determined and the land apportioned among the family, with the plaintiff receiving 7 acres partly to hold in trust for his mother

Reasoning

Cecilia Muyeyi Malala balloted for and paid for the land but received no share under the Tribunal award; her contribution is recognised by increasing the plaintiff's acreage to 7 acres, which he holds partly in trust for her. The other beneficiaries receive the acreage the Tribunal had indicated.

p. 7

Legal principles established

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  • A Land Disputes Tribunal could not determine a dispute concerning title to registered land under the repealed Land Disputes Tribunal Act
  • Proceedings of a body acting without jurisdiction are a nullity and unenforceable whether or not the point was raised earlier
  • Rectification of the register under Section 142 of the repealed Registered Land Act cannot effect a change of ownership from one person to another
  • Where land is acquired and registered in the name of a family patriarch, the registered proprietor may hold it in trust for the family

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The plaintiff holds the title to land parcel NO BUNGOMA/KIMININI/164 in trust for himself, his mother Cecilia Muyeyi Malala and the other family members being the defendants
  3. 3.The trust is determined and the land parcel shall be apportioned: Joyce Malala 2 acres, Charles Wakhu Otokoma 7 acres, Michael Asumbo 3 acres, Vincent Muyeyi 3 acres, Protus Makavana 3 acres, Daniel Okello 3 acres, Moses Otokoma 3 acres, Martin Nabwire 3 acres
  4. 4.The Land Registrar and Land Surveyor to cancel the title NO BUNGOMA/KIMININI/164 and issue new titles to the beneficiaries as indicated
  5. 5.The plaintiff to execute all relevant documents to facilitate the sub-division within 30 days
  6. 6.In default, the Deputy Registrar to execute the said documents
  7. 7.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Disputes Tribunals Act (repealed)Section 13(3)
  • Registered Land Act Cap 300 (repealed)Section 142(1)
  • Land Registration ActSection 79
  • Environment and Land Court ActSection 18

Cases cited (4)

  • JONATHAN AMUTAVA .V. THE CHAIRMAN SABATIA LAND DISPUTES TRIBUNAL
    C.A Civil Appeal No 256 of 2002
  • DESAI .V. WARSAMA
    1967 E A 351
  • DAVID KIPLETING CHEMEI .V. KANAMOI CHEPTOO KIMOITUK & ANOTHER
    2021 eKLR
  • ISACK M’LINTARI & ANOTHER
    2018 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (Section 18 referenced on intergenerational equity)

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, "Charles Wakhu Otokoma v Joyce Malala & 6 others [2021] KEELC 1683 (KLR)", Case Analysis (2021). Bungoma ELC Case (lead file; Bungoma ELC Case No 49 of 2014 stayed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1683/eng@2021-09-30

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