Peter Wanjala Wabwile & another v Peter Maelo Lubakaya & 13 others [2022] KEELC 1096 (KLR)
The bottom line
#Kenya's Bungoma Land Court cancelled seven fraudulently obtained land titles, ruling that trust claims never expire and land transferred mid-lawsuit can be traced and recovered.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was barred by limitation
The plea of limitation failed because the plaintiffs' claim was founded on trust, to which the limitation periods do not apply, and the parcels 2970-2979 were created after the suit was filed
The court relied on the Court of Appeal authorities holding that Sections 20(1) and 20(2) of the Limitation of Actions Act do not apply to actions by beneficiaries under a trust, including customary law trusts. It further found the 1st, 4th to 14th defendants to be constructive trustees of part of parcel 958 and the resultant subdivisions, and noted parcels 2970-2979 were created on 14th May 2004, a year after suit was filed.
Whether the suit was res judicata given prior tribunal, appeals committee and succession proceedings
The plea failed because the tribunal lacked jurisdiction over registered land ownership and trust disputes, and a succession cause cannot determine fraud or trust
The prior Kanduyi Land Disputes Tribunal award and Provincial Appeals Committee decision were quashed; a tribunal has no jurisdiction over ownership of registered land nor over trust claims, so those determinations were made without jurisdiction and cannot found res judicata. Bungoma Succession Cause No 15 of 1974 concerned administration of an estate, not fraudulent disposition or trust.
Whether the 1st defendant's acquisition of parcel 958 was fraudulent and whether a constructive trust arose
The 1st defendant was entitled to only 36 acres but acquired 60.021 acres; the extra 24 acres were held under a constructive trust for the plaintiffs' family
In the 1975 succession proceedings the 1st defendant testified on oath that he bought only 36 acres from MURUNGA's brothers, and the 2nd plaintiff's witness made the same concession. The Land Certificate issued in 1985 gave him 60.021 acres. The excess acquisition was unjust enrichment and fraudulent; equity imposed a constructive trust over the excess, which was traceable into the subdivisions.
Whether the 4th to 14th defendants were innocent purchasers for value
They were not; they knew of the litigation and their father subdivided and transferred parcels 2970-2979 during the pendency of the suit in breach of lis pendens
The 8th defendant admitted in cross-examination that his father subdivided the land after the plaintiffs filed suit, showing the family was privy to the litigation including the father's concession of 36 acres. The transfer on 14th May 2004 during the pendency of the suit breached lis pendens and was deliberately calculated to defeat the plaintiffs' claim.
Whether fraud was specifically pleaded against the 4th to 14th defendants
Although the pleadings were not elegantly drafted, the particulars of fraud in paragraphs 11, 12A and 12B referred to all defendants, and the 4th to 14th defendants clearly understood and denied the allegations
Citing Vijay Morjaria, fraud must be specifically pleaded. The court found the particulars in the amended plaint sufficiently covered all defendants; they denied the allegations in paragraphs 3-8 of their defence and put the plaintiffs to strict proof, showing they knew the case they had to meet; they could have sought further and better particulars if not.
Whether the suit was defective for failure to serve notice under Section 13A of the Government Proceedings Act
The suit was not defective because Section 13A has been declared unconstitutional as an impediment to justice
No statutory notice against the 2nd and 3rd defendants was shown, but the court adopted the decision in Kenya Bus Service Ltd v Minister for Transport declaring Section 13A(1) unconstitutional for impeding access to justice, and rejected the plea.
Legal principles established
#- A constructive trust may be imposed by the court where a party obtains more land than he is justly entitled to, without any existing trustee-beneficiary relationship
- Limitation under the Limitation of Actions Act does not apply to actions by a beneficiary under a trust, including trusts arising under customary law
- A judgment delivered by a court or tribunal without jurisdiction cannot operate as res judicata
- Property transferred during the pendency of a suit in breach of lis pendens to defeat a claim is fraudulent and traceable
Court orders
#- 1.A declaration that Peter/Petro Maelo Lubakaya held 24 acres out of land parcel EAST BUKUSU/WEST SANG'ALO/551 in trust for MURUNGA
- 2.A declaration that the titles to parcels EAST BUKUSU/WEST SANG'ALO/2970, 2971, 2972, 2973, 2974, 2975, 2976 and 2978 were held in trust and were obtained fraudulently
- 3.Cancellation of the titles EAST BUKUSU/WEST SANG'ALO/2970, 2971, 2972, 2973, 2974, 2975 and 2976
- 4.The 4th to 14th defendants to execute within 30 days all necessary documents to facilitate registration of parcels 2970, 2971, 2972, 2973, 2974, 2975 and 2976 (totalling 18.8 acres) in the names of Shadrack Munyigula Keya and Charles Musumba Keya to hold in trust for the family
- 5.In default, the Deputy Registrar of the Court to execute the necessary documents on behalf of the 4th to 14th defendants
- 6.Titles to parcels EAST BUKUSU/WEST SANG'ALO/2977 and 2979 shall not be affected and remain in the name of Daniel Chengasia
- 7.Plaintiffs to have only half of the costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (including Section 18(a)(iv) principles of equity); jurisdictional objections under Section 13A Government Proceedings Act, Limitation of Actions Act and Section 7 Civil Procedure Act considered and rejected
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wanjala Wabwile & another v Peter Maelo Lubakaya & 13 others [2022] KEELC 1096 (KLR)", Case Analysis (2022). Bungoma Environment and Land Court Suit (plaint dated 7th April 2003, amended 22nd June 2005 and 22nd February 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1096/eng@2022-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.