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ELCPartially AllowedELC Appeal No. 33 of 2021· [2022] KEELC 361 (KLR)

Odongo Fitina v Odaba Fitina & 2 others [2022] KEELC 361 (KLR)

Environment and Land Court
21 April 2022
AKA. Y. Koross
3,794 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that co-owners cannot sell land without written consent, and that courts cannot grant remedies nobody asked for.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Siaya against the judgment of Hon. J. P. Nandi, Principal Magistrate, in Bondo PM ELC Case No. 24 of 2019. The appellant, a registered tenant in common with the 1st respondent and their deceased father, had sued over the illegal hiving off of a portion of land parcel East Yimbo/Nyamonye/1522 and its sale by the 1st respondent to the 2nd respondent. The trial court had found the sale agreement unlawful but, invoking an unpleaded constructive trust, ordered partition and transfer of the purchased portion to the 2nd respondent. The appellant raised five condensed grounds. The court held that constructive trust and the remedy of partition and transfer were never pleaded, and that courts cannot grant relief not sought; the authorities relied on by the 2nd respondent were distinguishable because the sale here lacked written consent. The appellant's claim of entitlement under Luo customary law failed for want of proof, as he called no expert and adduced no evidence of his parents' homestead on the sold portion. The court found the trial court erred in failing to declare the sale null and void despite finding it invalid, thereby assisting a party to benefit from illegality, and that the magistrate's costs discretion was not judiciously exercised. The appeal was partially allowed: the trial judgment was set aside and substituted with declarations that the sale and partition were null and void, cancellation of parcel 6149 and rectification of the Registry Index Map, eviction of the 2nd respondent with 60 days to vacate, a permanent injunction, and costs of the trial court to the appellant, plus half the costs of the appeal.

Key legal issues

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01

Unpleaded constructive trust and remedy

Holding

The trial court erred in inferring constructive trust and ordering partition and transfer which were never pleaded

Reasoning

In an adversarial system parties are bound by their pleadings to ensure certainty and avoid surprise. Constructive trust and a prayer for partition and transfer were never pleaded by the respondents, yet the trial court inferred the parties' intent and granted an order never sought, contrary to a line of Court of Appeal decisions.

p. 3
02

Luo customary law inheritance claim

Holding

The appellant failed to prove his customary entitlement to the sold portion as youngest son

Reasoning

He who alleges must prove under Section 107 of the Evidence Act. The appellant neither called a Luo culture expert nor adduced evidence of his parents' house on the sold portion, and admitted in cross-examination that the property was co-owned and undivided. The ground of appeal failed.

p. 4
03

Validity of sale by a tenant in common without written consent

Holding

The sale without the appellant's written consent was unlawful, null and void and the court could not enforce it

Reasoning

Under Sections 91, 94 and 96 of the Land Registration Act a tenant in common needs written consent of co-tenants to deal with an undivided share. The trial court found the agreement void but inconsistently ordered partition and transfer, lending assistance to an illegality; the sale should have been declared null and void.

p. 4
04

Costs on appeal

Holding

The trial magistrate failed to exercise his discretion judiciously on costs

Reasoning

Costs follow the event under Section 27 of the Civil Procedure Act. The magistrate's reason that each party partially succeeded did not constitute good reason, as the respondents had not succeeded in their prayer for dismissal with costs and the appellant had been partially successful. The court interfered on that basis.

p. 4

Legal principles established

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  • Courts are bound by the pleadings of the parties and cannot grant a remedy or determine an issue not pleaded
  • A tenant in common wishing to deal with their undivided share must seek written consent of the remaining tenants in common
  • A party alleging the existence of customary law entitlement bears the evidential burden of proving it
  • No court will enforce or lend assistance to an illegal contract

Court orders

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  1. 1.Judgment and decree of the Principal Magistrate ordering partition and transfer by virtue of constructive trust set aside
  2. 2.Declaration that the sale of a portion of land parcel East Yimbo/Nyamonye/1522 by the 1st respondent to the 2nd respondent was unlawful, null and void
  3. 3.Declaration that the partition of land parcel East Yimbo/Nyamonye/1522 and subsequent issuance of parcel Siaya/Nyamonye/Adjudication Section/6149 was null and void
  4. 4.Registry Index Map to be rectified by cancellation of the partition and registration of parcel 6149 cancelled
  5. 5.Order of eviction of the 2nd respondent from land parcel East Yimbo/Nyamonye/1522
  6. 6.2nd respondent granted 60 days from service of the orders to remove himself and his developments from the suit property
  7. 7.Permanent injunction restraining the 2nd respondent from encroaching, constructing and/or trespassing on land parcel East Yimbo/Nyamonye/1522
  8. 8.Costs of the trial court awarded to the appellant
  9. 9.Half of the costs of the appeal awarded to the appellant

Authorities

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Legislation

  • Land Registration ActSections 91, 94, 96
  • Land ActDefinition of tenancy in common
  • Evidence ActSection 107
  • Civil Procedure ActSection 27

Cases cited (11)

  • IEBC & Another v Stephen Mutinda Mule & Another
    CA No. 219 of 2013
  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC 3
  • David Sironga Ole Tukai v Francis Arap Munge & others
    CA Number 76 of 2014
  • Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri
    [2014] eKLR
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • Katende v Haridar & Company Limited
    [2008] 2 EA 173
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Barnabas Biwott v Thomas Kipkorir Bundotich
    [2018] eKLR
  • Kenya Airports Authority vs Mitu-Bell Welfare Society & 2 others
    [2016] eKLR
  • Supermarine Handling Services v Kenya Revenue Authority
    [2010] eKLR
  • Devram Dattan v Dawda
    [1949] EACA 35
On appeal from
Principal Magistrate's Court at Bondo
Bondo PM ELC Case Number 24 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court (Environment and Land Court appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Odongo Fitina v Odaba Fitina & 2 others [2022] KEELC 361 (KLR)", Case Analysis (2022). ELC Appeal No. 33 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/361/eng@2022-04-21

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