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ELCDismissedEnvironment and Land Case Civil Suit 14 of 2012· [2022] KEELC 14769 (KLR)

Wanyama (suing as widow, legal and personal representatives of the estate of Joseph Wanambisi Naliakho (Deceased)) v Wamukota

Environment and Land Court
17 November 2022
BOB. N. Olao
7,449 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a buyer who occupied land for nearly 30 years after paying in full owns it, even though the seller's family held the title.

What this practically means

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Executive summary

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The plaintiff, widow and legal representative of the estate of Joseph Wanambisi Naliakho, sued Patrick Wamukota seeking declarations that 1993 sale agreements for 1½ acres out of South Malakisi/south Kulisiru/452 (now parcel 681, registered in her name in 2015) were null and void for want of Land Control Board consent, injunctions, eviction, a declaration of trespass and mesne profits. The defendant asserted he purchased and fully paid for the land, had occupied it since April 7, 1993, and claimed title by adverse possession, arguing the suit was res judicata given his pending adverse possession suit (Bungoma HCCC 37 of 2010, later dismissed for want of prosecution). The court first held the suit was not res judicata since the prior suit was not determined on the merits. It allowed DW2 to testify despite his presence in court during the defendant's testimony, holding the court retains discretion and would weigh his presence in assessing probative value. On the merits, the court found the defendant fully paid the purchase price (final instalment acknowledged September 8, 1993), so he was no trespasser; the LCB consent point was a red herring and statute barred; mesne profits were unpleaded and unproven; and the recovery claim was filed 19 years after possession, beyond the 12-year limitation period. Although adverse possession was not pleaded by counterclaim, both parties addressed it, and the court, applying Odd Jobs v Mubia and Kitilit, held the defendant entitled to the land, the plaintiff being a constructive trustee. The suit was dismissed; the trust was determined; the Land Registrar Bungoma was directed to register the defendant as proprietor and cancel the plaintiff's name; and each party was ordered to bear their own costs.

Key legal issues

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01

Res judicata

Holding

Suit not res judicata; the prior adverse possession suit was dismissed for want of prosecution, not heard on the merits

Reasoning

Section 7 of the Civil Procedure Act requires the former matter to have been heard and finally decided. Bungoma HCCC No 37 of 2010 was dismissed for want of prosecution by Mukunya J on May 11, 2017. Following the predominant line of authority, dismissal for want of prosecution does not amount to res judicata.

p. 5
02

Trespass and eviction

Holding

Defendant is not a trespasser; he entered under sale agreements with the deceased and paid the full purchase price

Reasoning

The defendant took possession in 1993 pursuant to two sale agreements; the September 8, 1993 acknowledgment showed final payment. The plaintiff's claim of an outstanding Kshs 6,000 was an afterthought absent from her statements. Entry under a valid sale cannot be wrongful or unjustifiable intrusion.

p. 8
03

Land Control Board consent

Holding

Absence of consent does not void the transaction as against the defendant; equity imposes a constructive trust in his favour

Reasoning

The agreements did not make completion subject to LCB consent. Following Kitilit, lack of consent does not preclude equitable relief. The plaintiff registered the title in 2015 knowing of the defendant's purchase and occupation; she is a constructive trustee for the defendant.

p. 12
04

Adverse possession (unpleaded issue)

Holding

Defendant entitled to the land by adverse possession; plaintiff's title extinguished

Reasoning

Though no counterclaim was pleaded, both parties addressed adverse possession in submissions, leaving it to the court under Odd Jobs v Mubia. The defendant had open, peaceful, uninterrupted possession for 12 years by 2005; the change of ownership in 2015 did not interrupt the claim (Githu v Ndeete).

p. 11
05

Limitation of actions

Holding

The plaintiff's claim to recover land was filed 19 years after the defendant took possession, beyond the 12-year limit

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual. The defendant entered in 1993; the suit filed in March 2012 was out of time and must be dismissed.

p. 9
06

Witness present in court

Holding

Court has discretion to allow such a witness to testify, weighing probative value; DW2's evidence was un-contested and non-prejudicial

Reasoning

Guided by Waithaka v R, the court allowed DW2 to testify but would consider his presence in assessing weight. Exchange of witness statements under Order 3 Rule 2 and Order 7 Rule 5 minimises trial by ambush; the plaintiff could impeach credibility on cross-examination. The evidence merely confirmed un-contested facts.

p. 9

Legal principles established

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  • Res judicata applies only where a former suit was heard and determined on the merits; dismissal for want of prosecution does not trigger it
  • A court may determine an unpleaded issue where both parties addressed it in evidence or submissions and left it to the court
  • A witness present in court during his party's testimony may still testify, but the court will consider his presence in assessing probative value
  • Lack of Land Control Board consent does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust
  • A claim to recover land must be brought within twelve years of accrual under section 7 of the Limitation of Actions Act

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Judgment entered for the defendant: the plaintiff holds the title to land parcel No South Malakisi/south Kulisiru/681 in trust for the defendant
  3. 3.That trust is hereby determined
  4. 4.The Land Registrar Bungoma is directed to register the defendant as proprietor of land parcel No South Malakisi/south Kulisiru/681 and cancel the plaintiff's name from the register
  5. 5.The plaintiff shall within 30 days surrender the title deed to the Land Registrar Bungoma to facilitate the registration, failing which the Land Registrar may cancel it
  6. 6.Each party shall meet their own costs

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 2 (definition of mesne profits)
  • Civil Procedure Actsection 3A
  • Limitation of Actions Actsection 7
  • Trespass Actsection 3(1)
  • Environment and Land Court Actsection 23
  • Constitution of KenyaArticle 7
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 2 Rule 6(1); Order 3 Rule 2; Order 7 Rule 5

Cases cited (15)

  • Njue Ngai -v- Ephantus Njiru Ngai

    Dismissal for want of prosecution held to amount to res judicata (divergent view)

  • Tee Gee Electrical & Plastick Company -v- Kenya Industrial Estates Ltd
    2005 2 KLR 97

    Res judicata applies only where suit heard and determined on merits

  • Caneland Ltd & others -v- Delphis Bank Ltd
    CA Civil Appeal No 20 of 2000

    Res judicata requires determination on the merits

  • Michael Bett Siror -v- Jackson Koech
    CA Civil Appeal No 53 of 2016 (2019 eKLR)

    Res judicata requires determination on the merits

  • Francis Aligo Okuso -v- Dorcus Omega
    2019 eKLR

    Res judicata only applies where case heard and determined on merits

  • Waithaka & another -v- R
    1972 EA 184

    Witness present in court may testify but court weighs his presence in assessing evidence

  • Simon Khaemba Mwanja -v- Jamin Wasike Khaemba & another
    2020 eKLR

    Court may admit Kiswahili documents invoking Article 159(2)(d)

  • Hahn -v- Singh
    1985 KLR 716

    Special damages must be specifically pleaded and strictly proved

  • Wilfred Kegonye Babu -v- Henry Mose Onuko
    CA Civil Appeal No 82 of 2014 (2019 eKLR)

    Whether a purchaser can claim land by adverse possession

  • Mtana Lewa -v- Kahindi Ngala Mwagandi
    2015 eKLR

    Elements of adverse possession

  • Odd Jobs -v- Mubia
    1970 EA 476

    Court may base decision on unpleaded issue left to it at trial

  • Ann Wairimu Wanjohi -v- James Wambiru Mukari
    CA Civil Appeal No 144 of 2017 [2021 eKLR]

    Unpleaded issue may be determined if addressed by both parties and left to court, but no relief not specifically sought

  • Githu -v- Ndeete
    1984 KLR 776

    Change of ownership of land does not interrupt adverse possession claim

  • Willy Kimutai Kitilit -v- Michael Kibet
    CA Civil Appeal No 51 of 2015 [2018 eKLR]

    Lack of LCB consent does not preclude equitable principles, particularly constructive trust

  • Twalib Hatayan Twalib Hatayan & another -v- Said Saggar Ahmed Al Heidy & others
    2015 eKLR

    Definition and imposition of constructive trust to guard against unjust enrichment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (section 23 on court language referenced); inherent powers under Article 159(2)(d) of the Constitution and section 3A of the Civil Procedure Act invoked

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, "Wanyama (suing as widow, legal and personal representatives of the estate of Joseph Wanambisi Naliakho (Deceased)) v Wamukota", Case Analysis (2022). Environment and Land Case Civil Suit 14 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14769/eng@2022-11-17

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