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ELCAllowedHigh Court Civil Suit (ELC) of 2017 (Kisumu)· [2022] KEELC 753 (KLR)

Christabel Achieng Odera & 6 others v Christopher Juma Akinyi & 5others; David Odera Oim &18; others(Interested Parties) [2022] KEELC 753 (KLR)

Environment and Land Court
18 March 2022
AOAntony Ombwayo
4,841 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, members of the Kogony Community belonging to seven sub-clans, sued the 1st to 4th Defendants over a block of land between the Kogony and Kanyakwar Adjudication Sections (Kogony C-18 Scheme, parcels Kisumu/Kogony/5000 up to Kisumu/Kogony/6012). They claimed the land was inadvertently included in a 1978 Gazette Notice for the expansion of Kisumu town, and when the mistake was resolved the block remained undemarcated. In 2011 the District Land Adjudication & Settlement Officer directed that it be adjudicated back to original families; the 1st to 3rd Defendants were elected to act for the community but, it was alleged, in collusion with the 4th Defendant (a Lands Ministry officer) and the District Land Registrar caused the surveyed parcels to be registered to themselves and non-members, contrary to their fiduciary role. The Defendants denied fraud, asserting that community members received titles and later sold their parcels. The court framed three issues: whether the suit property is community land; whether fraud was proved; and whether the Plaintiffs were entitled to the orders sought. Applying Article 63 of the Constitution, the Community Land Act and Gitson Energy, the court held it was not in dispute that the property was community land. It found the Defendants registered parcels to non-members and sold others, and that the pleaded particulars of fraud were proved on a balance of probability. Judgment was entered for the Plaintiffs: general damages of Kshs. 10,000,000/=, a declaration that the scheme is ancestral land reverting to the Plaintiffs, cancellation of the offending titles, equitable distribution of remaining parcels, accounts of dealings and sale proceeds, and costs plus interest. The judgment was delivered electronically on 18 March 2022 owing to COVID-19 court operation measures.

Key legal issues

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01

Whether the suit property is community land

Holding

It was not in dispute that the suit property is community land; the Plaintiffs belong to the Kogony community with common ancestry and the property was to be adjudicated and reverted to original families.

Reasoning

The court applied Article 63 of the Constitution and the Community Land Act's definition of a community, relying on Gitson Energy to contrast registered and unregistered community land. A letter from the District Land Adjudication & Settlement Officer dated 15 March 2011 recommended that the gap between Kogony and Kanyakwar be surveyed to residents of Kogony, confirming the community character of the land and the Plaintiffs' claim to it.

p. 6
02

Whether fraud on the part of the Defendants was proved

Holding

The particulars of fraud pleaded were proved on a balance of probability; the Defendants, appointed to act for the community, caused parcels to be registered to non-members and sold to third parties.

Reasoning

The Defendants were appointed as leaders/trustees to ensure registration and issuance of titles to community members. Instead, they registered the suit parcels and transferred them to persons who were not members of the community, and sale agreements showed some parcels were sold to third parties. An anti-corruption report showed 36 of 53 plots in phase one went to non-members. The court found the pleaded particulars of fraud proved on a balance of probability.

p. 6
03

Whether the Plaintiffs are entitled to the orders sought

Holding

Judgment was entered for the Plaintiffs on all the prayers in the Amended Plaint, including general damages, declaration, cancellation of titles, distribution of remaining parcels and accounts.

Reasoning

Having found the suit property to be community land and fraud proved against the Defendants who breached their fiduciary/trustee role, the court concluded the Plaintiffs were entitled to the reliefs sought. The court entered judgment against the Defendants and granted each of the prayers substantially as prayed in the Amended Plaint, including costs and interest.

p. 6

Legal principles established

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  • Fraud must be strictly proved to a standard higher than a mere balance of probabilities.
  • Unregistered community land is held by the county government in trust for the community, while registered community land vests in and is administered by the particular community.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge on grounds of fraud or where acquired illegally, unprocedurally or through a corrupt scheme.

Court orders

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  1. 1.General damages of Kshs. 10,000,000/=.
  2. 2.A declaration that the block of land comprised in Map Sheet or Diagram No. 18 (Kogony C-18 Scheme, parcels Kisumu/Kogony/5000 up to Kisumu/Kogony/6012) is the Plaintiffs' ancestral land and should revert back to the Plaintiffs.
  3. 3.Nullification and cancellation of all title deeds forming part of the Kogony C-18 Scheme issued to the 1st, 2nd, 3rd and 4th Defendants and/or any other third parties.
  4. 4.Equitable and just sharing/distribution of all remaining parcels of the Kogony C-18 Scheme not transferred or alienated among all entitled beneficiaries including the Plaintiffs.
  5. 5.The 1st, 2nd, 3rd and 4th Defendants to render true and accurate accounts of their dealings with all parcels in Kogony C-18 and jointly and severally account to the Plaintiffs for proceeds of sale of any parcels sold.
  6. 6.Costs of the suit plus interest thereon to the Plaintiffs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 63
  • Constitution of Kenya, 2010Article 62(2)
  • Community Land ActNo. 27 of 2016; definition of 'Community'; section 15
  • Land Registration ActSections 25 and 26; section 28
  • Land Acquisition ActSection 8 (as cited within quoted authority)

Cases cited (7)

  • Isaack M'Inanga Kabia vs Isaaya Theuri Mlintani & Another
    Petition No. 10 of 2015
  • Yunita Oucho Owino vs Jectone Ongoro Girumba
    ELC 334 of 2014 Kisumu
  • Isaiah Otiato & 6 Others v County Government of Vihiga
    (2018) eKLR
  • Town Council of Awendo vs Nelson O Onyango & 713 Others; Abdul Malik Mohamed & 178 Others (Interested Parties)
    (2019) eKLR
  • Republic vs Land Registrar, Transzoia & Another Exparte Mary Odhiambo & Another
    (2019) eKLR
  • Gitson Energy Limited v Francis Chachu Ganya & 6 others
    [2017] eKLR
  • Mutsonga –VS- Nyati
    [1984] KLR at page 426
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land; Article 63 of the Constitution of Kenya on community land

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, "Christabel Achieng Odera & 6 others v Christopher Juma Akinyi & 5others; David Odera Oim &18; others(Interested Parties) [2022] KEELC 753 (KLR)", Case Analysis (2022). High Court Civil Suit (ELC) of 2017 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/753/eng@2022-03-18

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