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ELCPartially AllowedOriginating Summons filed 4th August 2021· [2022] KEELC 3766 (KLR)

Loice Nandako Mola v Joram Kakai Ambale (Enviromental and Land Originating Summons E009 of 2021) [2022] KEELC 3766 (KLR)

Environment and Land Court
4 July 2022
BOBoaz N. Olao
7,064 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Bungoma court gave a widow 2.5 acres of land registered in her stepson's name, ruling that a title deed cannot defeat a genuine trust.

What this practically means

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Executive summary

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The plaintiff sued by Originating Summons seeking to be declared owner of approximately 4.0 acres of land parcel East Bukusu/North Sang'alo/840 registered in the defendant's name, by adverse possession under Sections 7, 17 and 38 of the Limitation of Actions Act, and alternatively that the defendant holds the land in trust for her. Her case was that she married the deceased (the defendant's father) customarily in 1986, that they jointly bought the land, and that she occupied and developed it openly for over 30 years, holding the title until 2016 when the defendant tricked her into surrendering it and had himself registered following succession proceedings in which she was never informed or joined. The defendant denied the marriage and any contribution to the purchase, contending she was a licensee whose licence had expired. The court held the adverse possession claim failed: possession from 1986 to 1991 was with the deceased's consent, no representative could be sued until the Grant of 9th December 2004, the defendant was only registered on 2nd August 2016 before the 12-year period expired, and he was not dispossessed. However, the trust claim succeeded: the defendant did not purchase the land, the plaintiff held the title for years and was deceived, and her continuous occupation and improvements justified a constructive trust. The court declared the defendant holds the land in trust for both parties, awarding the plaintiff 2.5 acres and the defendant 1.5 acres, with subdivision machinery and a buy-out alternative, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the defendant's title was extinguished by adverse possession

Holding

No. Possession from 1986 to 1991 was with the deceased's consent; the defendant was only registered on 2nd August 2016, before the 12-year period expired; and the defendant and his family were not dispossessed.

Reasoning

A claimant must prove exclusive, open possession as of right without interruption for 12 years after dispossession or discontinuance by the owner. The plaintiff entered and stayed with the deceased's consent, which negates adversity. After the deceased died, no representative existed to be impleaded until 2004, and the defendant only acquired title by transmission in 2016. The suit was filed barely days later, so time had not run against him, and his evidence showed his family still accessed the land.

p. 8
02

Whether the defendant holds the suit land in trust for the plaintiff

Holding

Yes, a constructive trust arises: the defendant did not purchase the land, the plaintiff held the title for years and was tricked into surrendering it, and she has been in continuous occupation with improvements.

Reasoning

The defendant was about 9 years old when the land was bought by his father; the title was in the plaintiff's custody until 2016; the succession proceedings concealed her occupation in bad faith; and she has occupied and improved the land since 1986. These undisputed facts justify the equitable remedy of a constructive trust despite the defendant's indefeasible registration, since registration does not relieve a proprietor of trustee duties.

p. 12
03

Whether the plaintiff was a mere licensee

Holding

No. If any licence existed it ended with the deceased's death in 1991, yet neither the defendant nor the administrator ever moved to evict her, and no counterclaim for eviction was filed.

Reasoning

A licence permits acts on land that would otherwise be trespass. Neither the administrator after obtaining the Grant in 2004 nor the defendant after registration in 2016 terminated the alleged licence or sought eviction; the defendant admitted his family still visits the land. The court found the deceased's conduct demonstrated an intention that the plaintiff retain at least a share of the land, inconsistent with a bare licence.

p. 11

Legal principles established

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  • Adverse possession does not apply where the claimant's possession is with the consent of the owner of the land.
  • Time in an adverse possession claim against a person registered by transmission only begins to run upon registration.
  • Registration of land in a party's name does not extinguish the interest of another entitled by way of trust including customary trust.
  • A court may presume or impose a constructive trust only where the intention of the parties is clearly determined and in cases of absolute necessity.

Court orders

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  1. 1.The defendant holds the land parcel No East Bukusu/north Sang'alo/840 in trust for both himself and the plaintiff
  2. 2.The plaintiff's share out of the suit land shall be 2.5 acres while the defendant's share shall be 1.5 acres
  3. 3.The defendant shall within 30 days from the date of the Judgment surrender the title deed to the Land Registrar Bungoma for cancellation to create two (2) titles registered in the names of the plaintiff and the defendant
  4. 4.In default, the Land Registrar and County Surveyor Bungoma shall be at liberty to cancel the title deed and issue new title deeds in the names of the plaintiff and the defendant in the ratio described
  5. 5.The Deputy Registrar shall be at liberty to execute any documents on behalf of any defaulting party to facilitate registration of the resultant sub-divisions
  6. 6.The parties shall equally share the costs of the sub-division and preparation of the title deeds
  7. 7.In the alternative, the suit land shall within 90 days be valued by a valuer jointly appointed by the parties, costs of valuation equally shared
  8. 8.Either party shall be at liberty to buy out the share entitlement of the other party should they deem it fit to do so
  9. 9.Each party shall meet their own costs of the suit
  10. 10.Either party shall be at liberty to apply for any further orders if need be

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 17, 37, 38(1)
  • Land Registration ActSections 25(1), 25(2), 26(1), 28(a),(b),(h)
  • Land ActSections 7(d) (prescription) and definitions of licence/licensee/licensor
  • Evidence ActSection 59

Cases cited (11)

  • Kasuve .v. Mwaani Investments Ltd & Others
    1 KLR 184
  • Wanje .v. Saikwa
    No 2 1984 KLR 284
  • Sisto Wambugu .v. Kamau Njuguna
    Civil Appeal No 10 of 1982 [1983 eKLR]
  • Littledale .v. Liverpool College
    [1900 1 Ch 19]
  • Leigh .v. Jack
    (1879) 5 Ex D 624
  • Mwinyi Hamis Ali .v. A-G & Philiemon Mwaisaka Wanaka
    Civil Appeal No 125 of 1997
  • Twalib Hatayan Twalib Hatayan & Another .v. Said Saggar Ahmed Heidy & Others
    2015 eKLR
  • Kanyi .v. Muthiora
    1984 KLR 712
  • Peter Ndungu Njenga .v. Sophia Watiri Ndungu
    2000 eKLR
  • Gichuki .v. Gichuki
    1982 KLR 285
  • Mbothu & Others .v. Waitimu & Others
    1986 KLR 171
Jurisdiction invoked
Original jurisdiction under Sections 7, 17 and 38 of the Limitation of Actions Act and trust jurisdiction under Sections 25, 28 of the Land Registration Act

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, "Loice Nandako Mola v Joram Kakai Ambale (Enviromental and Land Originating Summons E009 of 2021) [2022] KEELC 3766 (KLR)", Case Analysis (2022). Originating Summons filed 4th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3766/eng@2022-07-04

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