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ELCDismissedNot stated in the judgment (Environment and Land Court appeal from dismissal of suit filed 11/08/16)· [2021] KEELC 3541 (KLR)

William Odongo Guya v George Otiato Mbaye & Land Adjudication & Settlement Officer Bondo Sub County (Environment and Land Appeal 54 of 2019) [2021] KEELC 3541 (KLR)

Environment and Land Court
29 April 2021
AOAntony Ombwayo
3,648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court confirmed that 26 years of peaceful possession, a valid title and time-barred claims defeat a family's bid to cancel land sold in 1990.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu against a judgment of 13th December 2019 dismissing the plaintiff's suit with costs to the 1st defendant. The appellant, whose late father sold a portion of Uyawi/Central Sakwa/1018 to the 1st respondent by agreement dated 3rd July 1990, sought cancellation, revocation and/or rectification of parcel no. 4768, a declaration that the 1st respondent was entitled only to a portion of the original parcel, a permanent injunction and damages. The appeal condensed into three issues: whether the sale agreement offended section 3(3) of the Law of Contract Act; whether the trial court failed to make a finding on the requirement of Land Control Board consent; and whether the suit was statute barred. Ombwayo J held that the agreement met the requirements of section 3(3), being written, signed (including by thumbprint) and witnessed. On consent, the court accepted that the transaction required consent but found that the 1st respondent's approximately 26 years of uninterrupted possession and his title sustained his position. The claim founded on contract and for recovery of land was held statute barred under sections 4(1)(a) and 7 of the Limitation of Actions Act, the right of action accruing on possession in 1990, not the vendor's death. The fraud claim was not time barred but failed on the facts, fraud not being proved to the required standard. The appeal was dismissed with costs to the 1st defendant.

Key legal issues

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01

Compliance with section 3(3) of the Law of Contract Act

Holding

The sale agreement satisfied section 3(3): it was in writing, signed by vendor and purchaser (by thumbprint) and attested by a witness

Reasoning

The court examined the agreement produced as DEXH-1 and found it in writing, signed by both vendor (by left-hand thumbprint, unchallenged) and purchaser, witnessed by an advocate and two other witnesses. On certainty, the agreement identified parcel Uyawi/Central Sakwa/1018, with evidence unchallenged that a portion later registered as 4768 was sold. The agreement was therefore valid.

p. 3
02

Land Control Board consent

Holding

Though the transaction arguably required consent, the land was under adjudication and the 1st respondent had acquired a valid title and been in possession for about 26 years

Reasoning

The suit land was under the Bondo/Nyangoma Adjudication section and still under adjudication in 2015. The 1st respondent testified he obtained consents but did not produce minutes or consent documents. The court presumed registration would not have occurred without consents, and in any event, following Jeremiah Kiilu Maitha, long possession of about 26 years sustained the title.

p. 4
03

Limitation of actions

Holding

The claim founded on contract and for recovery of land was statute barred under sections 4(1)(a) and 7 of the Limitation of Actions Act

Reasoning

The sale agreement was executed in 1990 and the suit filed in 2016, 26 years later, far beyond the six-year period for contract claims. The right to recover land accrued when the 1st defendant took possession in 1990, not on the vendor's death, so the twelve-year period under section 7 had also expired. The court adopted the approach in David Oteba Ooko v Peter Joe Emongor.

p. 4
04

Fraud

Holding

Fraud was not proved; the claim based on fraud was itself not statute barred as it was discovered around July 2016 and the suit filed in August 2016

Reasoning

Section 26 of the Limitation of Actions Act meant the fraud claim accrued on discovery, which the court placed around July 2016 from a letter by the land adjudication officer. However, on the merits, the plaintiff bore the burden of proving fraud to the elevated intermediate standard and failed; the 1st respondent proved he followed the correct procedure in obtaining title.

p. 5

Legal principles established

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  • On a first appeal the court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses
  • An appellate court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or a misapprehension of the evidence
  • The right of action to recover land accrues from the time the defendant took possession, not from the date of death of the deceased vendor
  • The burden of proving fraud lies on the party alleging it, to a standard higher than a balance of probabilities but lower than beyond reasonable doubt
  • A purchaser under a sale agreement void for want of Land Control Board consent may still succeed by proving continuous, exclusive and peaceful possession for twelve years with the owner's knowledge

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the 1st defendant

Authorities

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Legislation

  • Law of Contract Act Cap 23section 3(3)
  • Limitation of Actions Actsection 4 (section 4(1)(a))
  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 26
  • Land Control Actsection 6(1); section 2 (definition of agricultural land)
  • Land Adjudication Act (Cap 284)generally
  • Trust Land Act (repealed)generally
  • Community Land Actgenerally

Cases cited (8)

  • Selle and another v Associated Motor Boat Company Ltd and others
    [1968] 1 EA 123
  • David Oteba Ooko v Peter Joe Emongor
    [2020] eKLR
  • Mwangi v Wambugu
    [1984] KLR 453
  • Joanes Ondego Oywech v Alex Omondi Ogolla
    [2017] eKLR
  • Jeremiah Kiilu Maitha v Agnes Ngeki Mutie
    [2018] eKLR
  • MR. AND MRS. JUSTICE E. TORGBOR V LADISLAUS ODEYO OGUOK (NBI CA NO. 100 OF 2015 (UR 81/2014))
    NBI CA NO. 100 OF 2015 (UR 81/2014)
  • BOSIRE OGERO V ROYAL MEDIA SERVICES (NBI NO. 292 OF 2013)
    NBI NO. 292 OF 2013
  • John Mbugua Gitau v Simon Parkoyiet Mokare & 6 others
    [2014] eKLR
On appeal from
Magistrates' Court (trial court not named in judgment)
Suit filed 11/08/16 (number not stated)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (appeal against the whole judgment of 13th December 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "William Odongo Guya v George Otiato Mbaye & Land Adjudication & Settlement Officer Bondo Sub County (Environment and Land Appeal 54 of 2019) [2021] KEELC 3541 (KLR)", Case Analysis (2021). Not stated in the judgment (Environment and Land Court appeal from dismissal of suit filed 11/08/16). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3541/eng@2021-04-29

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