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ELCAllowedELC CASE NO. E11 OF 2020 (O.S)· [2021] KEELC 1999 (KLR)

Teresa Egessa &3 others v Makokha Nachibati &another; [2021] KEELC 1999 (KLR)

Environment and Land Court
20 September 2021
AOA. Omollo
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Busia court ruled that land registered in one man's name actually belonged to the family living on it for over thirty years, cancelling the buyer's title.

What this practically means

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Executive summary

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The Applicants, children and widow of the late Egessa Emoit, brought an Originating Summons against the Respondents claiming land parcel South Teso/Angorom/548 by adverse possession and/or trust. They averred that the land was family inheritance bequeathed to their father, who died in 1970 before adjudication was completed; the 2nd Respondent, a distant uncle who inherited their mother under Teso custom, was registered as sole proprietor during adjudication, and in 1998 transferred the land to the 1st Respondent without the Applicants' knowledge, while the Applicants continued in occupation. The Respondents, though served, neither filed responses nor appeared at the hearing, and the suit proceeded by affidavit evidence. The court framed three issues: whether the Applicants' occupation was adverse, whether the 2nd Respondent held the land in trust, and costs. Applying Section 7 of the Limitation of Actions Act and adverse possession principles from the Court of Appeal and the Indian Supreme Court, the court found the Applicants' possession open, actual, continuous and uninterrupted for over thirty years, known to both Respondents. On trust, applying the constructive trust doctrine in Twalib Hatayan, the court held that the circumstances of registration created a constructive trust, and that the 2nd Respondent's sale while the Applicants were in occupation amounted to unjust enrichment. Judgment was entered for the Applicants: declarations of trust, cancellation of the transfer entries, an order for execution of transfer documents (with the Deputy Registrar to execute if necessary), and costs against the Respondents jointly and severally.

Key legal issues

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01

Whether the Applicants' occupation matured into adverse possession

Holding

Yes - occupation was open, actual, continuous and uninterrupted for over thirty years with the knowledge of both Respondents

Reasoning

The Applicants were living on the suit parcel before 1970, before the 1998 sale. By the time the 2nd Respondent sold the land, they had occupied it for more than twelve years without being asked to vacate by the 1st Respondent. The possession was therefore nec vi, nec clam, nec precario, satisfying the Limitation of Actions Act threshold and proving the claim on a balance of probabilities.

p. 3
02

Whether the 2nd Respondent held the land in trust for the Applicants

Holding

Yes - a constructive trust arose from the circumstances of registration following the 2nd Respondent's inheritance of the Applicants' mother

Reasoning

The Applicants' father died before adjudication was completed; the 2nd Respondent, having inherited their mother, was registered as sole proprietor for practical reasons while the Applicants remained in occupation. His sale of the land while the Applicants lived on it amounted to unjust enrichment, and equity imposed a constructive trust, rendering the transfer to the 1st Respondent invalid.

Legal principles established

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  • A party claiming adverse possession must prove possession that is peaceful, open and continuous, hostile to the true owner and continued over the statutory period
  • A constructive trust arises where the legal owner takes advantage of his position for his own benefit, and proof of intention is immaterial; it guards against unjust enrichment
  • A trustee registered over family land has no capacity to transfer the property

Court orders

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  1. 1.A declaration that EXAVARIO NAMUKOMA OUNOI and by extension MAKOKHA NACHIBATI held land parcel SOUTH TESO/ANGOROM/548 in trust for the Applicants
  2. 2.The Land Registrar, Busia County, ordered to cancel ALL entries on the Suit Title transferring the property from the 2nd Respondent to the 1st Respondent
  3. 3.The 1st Respondent to forthwith execute transfer documents in favour of the Applicants, failing which the Deputy Registrar shall execute the same to facilitate registration of the property in the joint names of the Applicants
  4. 4.Costs awarded to the Applicants, to be borne by the Respondents jointly and severally
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (adverse possession and trust claims over land); Originating Summons under Section 7 of the Limitation of Actions Act, CAP 22

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, "Teresa Egessa &3 others v Makokha Nachibati &another; [2021] KEELC 1999 (KLR)", Case Analysis (2021). ELC CASE NO. E11 OF 2020 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1999/eng@2021-09-20

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