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ELCPartially AllowedBusia PMCC No. 302 of 2007 (consolidated with Busia SRMC Case No. 495 of 1996)· [2022] KEELC 127 (KLR)

Khaseke & 3 others v Khaseke & 2 others; Khaseke & 2 others (Interested Party) (Environment & Land Case 58 of 2015) [2022] KEELC 127 (KLR)

Environment and Land Court
16 February 2023
FOF. A. Ochieng
9,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled fraudulently acquired family land titles because the subdivision lacked valid Land Control Board consent, confirming a customary family trust.

What this practically means

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Executive summary

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The Plaintiffs, sons of the first wife of the late Didymus Khaseke Odundo, sued their step-brothers (the Defendants) seeking permanent injunction and eviction from L.R No. Bukhayo/Matayos/2453 and related parcels, having acquired titles upon the 1996 subdivision of the ancestral parcel Bukhayo/Matayos/63. The Defendants, by a defence and a counterclaim adopted from Busia SRMCC No. 495 of 1996, alleged that their father had in 1994, before elders, allocated portions of the land to his wives, that the Defendants occupied their mother's share, and that the Plaintiffs fraudulently subdivided the land in 1996 disinheriting them; they sought cancellation of the titles and a declaration of trust. The Interested Parties, also family members occupying neighbouring portions, supported the Defendants. The court found that the land control board consents relied upon by the Plaintiffs were unsupported by the board's records, bore identical serial numbers and did not correspond to the transactions, rendering the subdivision and transfers void under section 6 of the Land Control Act. The court further found the Plaintiffs hold the titles in trust for the Defendants, applying the customary trust criteria in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, since the land was ancestral family land and the Defendants were in occupation. The Plaintiffs' suit was dismissed; the Defendants' counterclaim succeeded. The titles to parcels 2452, 2453, 2455, 2456 and 2457 were cancelled and reverted to Didymus Khaseke Odundo's name; the 1996 subdivision was declared void and illegal; boundaries were reverted to the 17/10/1994 demarcation; with no orders as to costs as the dispute is between family members.

Key legal issues

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01

Validity of land control board consents

Holding

The consents relied on by the Plaintiffs were not supported by the issuing authority's records, invalidating the subdivision and transfer

Reasoning

The Defendants showed that the consents bore the same serial number, the minutes did not correspond, and the Assistant County Commissioner confirmed the subdivision and transfer minutes were not in the Land Control Board records. Section 6 of the Land Control Act renders such transactions void absent consent.

p. 13
02

Customary trust

Holding

The Plaintiffs hold the titles in trust for the Defendants under a customary trust

Reasoning

The suit land was ancestral family land; the Plaintiffs, Defendants and Interested Parties belong to the same family; the Defendants were in occupation of portions allocated to their mothers in 1994 before the Plaintiffs acquired titles in 1996. All elements in Kiebia v M'lintari were met.

p. 15
03

Rectification/cancellation of title

Holding

The Plaintiffs' titles, having been fraudulently and illegally acquired, cannot be protected by law and are cancelled

Reasoning

Section 26 of the Land Registration Act permits challenge of a title acquired illegally, unprocedurally or through a corrupt scheme. The Defendants proved the consents were fabricated and the subdivision defeated the 1994 family distribution.

p. 16

Legal principles established

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  • Transactions affecting agricultural land are void without land control board consent
  • Customary trust elements as set out in Isack M'inanga Kiebia v Isaaya Theuri M'lintari
  • Fraud must be strictly proved, more than on a balance of probabilities

Court orders

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  1. 1.The Plaintiffs' title in respect of Bukhayo/Matayos/2452, 2453, 2455, 2456 and 2457 be and is hereby cancelled and the title reverts to the name of Didymus Khaseke Odundo
  2. 2.The subdivision of the suit land number Bukhayo/Matayos/63 carried out in 1996 be and is hereby declared void and illegal
  3. 3.Boundaries be reverted to the original boundaries as prescribed in the 17/10/1994 meeting
  4. 4.There shall be no orders as to costs

Authorities

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Legislation

  • Land Control ActSection 6
  • Land Registration ActSections 24, 25, 26, 28, 19
  • Registered Land Act (repealed)Sections 30, 28(b)
  • Evidence ActSections 107 to 109
  • The Old ConstitutionSection 75

Cases cited (19)

  • Justine Magare Bosire v Isaac Omoga
    (2018) eKLR
  • Doune Farms Ltd vs. Richard Soi 4 others
    (2017) eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others
    (2014) eKLR
  • Rahab Kosgei v Nuru Jepleting
    (2020) eKLR
  • Macharia Mwangi Maina & Others v Davidson Mwangi Khagiri
    (2014) eKLR
  • Isaack M'Inanga Kiebia vs. Isaya Theuri M'Lintari & Another
    (2018) eKLR
  • Charles Karathe Kiarie & 2 others v Administrators of the Estate of John Wallace Mathare (Deceased) & 5 others
    [2013] eKLR
  • Paul Muira & Another v Jane Kendi Ikinyua & 2 others
    (2014) eKLR
  • Musonga v Nyati
    (1984) KLR 425
  • Koinange and 13 Others
    (1986) eKLR
  • Wallingford v Mutual Society
    (1880) 5 App. Cas. 685
  • Garden Neptune v Occident
    [1989] 1 Lloyd's Rep. 305
  • Lawrence V Lord Norreys
    (1880) 15 App. Cas. 210
  • Davy V Garrett
    (1878) 7 ch.D. 473
  • David Sironga Ole Tukai vs. Francis Arap Muge & 2 Others
    [2014] eKLR
  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR
  • KARURI v GITURA
    [1981] KLR 247
  • Leonard Njonjo Kariuki vs. Njoroge Kariuki Alias Benson Njonjo
    Ca. No. 26 Of 1979
  • Insurance Company of East Africa v The Attorney General & 3 Others
    HCCC No. 135 of 1998
Jurisdiction invoked
Original civil jurisdiction following transfer of suits from the magistrates' court to this Court

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, "Khaseke & 3 others v Khaseke & 2 others; Khaseke & 2 others (Interested Party) (Environment & Land Case 58 of 2015) [2022] KEELC 127 (KLR)", Case Analysis (2023). Busia PMCC No. 302 of 2007 (consolidated with Busia SRMC Case No. 495 of 1996). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/127/eng@2022-06-08

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