Wasike & 3 others v Wakhungu & another (Sued as the legal representative of the Estate of Jafferson Wakhungu Wasilwa) (Environment & Land Case 17 of 2019) [2023] KEELC 694 (KLR)
The bottom line
#A Busia court ruled that family land held in one person's name is still family property, splitting 22 acres equally between relatives.
What this practically means
#Executive summary
#Key legal issues
#Whether a customary trust was proved over the suit land
Yes - applying the five elements in Isack M'inanga Kebia v Isaaya Theuri M'Lintari (SCOK Petition No 10 of 2015), the plaintiffs, being family members in long occupation before and since registration, proved a customary trust; the title holder held the land in trust for the family including the plaintiffs.
The land was registered in Jefferson Wakhungu Wasilwa's name in 1972 as family land; the plaintiffs occupied it from the 1960s, were born there, and their relationship to the family was not tenuous. The 1st defendant admitted his father left the land to Robert Wasike Njalale and that occupation was allowed, and the Lufu minutes of 11th February 2004 recognized Robert Wasike as a beneficiary. The defendants never explained how their father acquired the land as private property.
Whether the plaintiffs are licencees liable to eviction under the defendants' counter-claim
No - their occupation was as family members entitled under the trust, not mere licencees; the counter-claim for eviction was dismissed.
The defendants' own case was that occupation was permissive, which confirms the plaintiffs occupied because they were family with an interest in the land. The late withdrawal notice of 9th October 2019 was a reaction to this suit filed four months earlier. The Lufu minutes recognized the plaintiffs' entitlement 'in principle', which the court held could only be the trust. A licencee has no proprietary interest, but the plaintiffs' interest was proprietary under the trust.
Whether the claim for adverse possession succeeded
No - occupation was with the consent of the registered proprietor and his predecessors, so possession was never adverse; the claim was rejected.
Both parties conceded the occupation was with consent of Abednego and later Jefferson Wakhungu Wasilwa. Possession with consent cannot be adverse to the title holder's rights. However, the court noted adverse possession claims involving family land must be treated with circumspection but are not impossible where consent is withdrawn and the land is private property. Having found the trust proved, consideration of adverse possession was superfluous.
Whether pleading adverse possession and trust in the alternative was procedurally improper
No - following Teresia Wachuka Gachira v Joseph Mwangi Gachira and Ngati Farmers Co-operative Society Ltd, the two claims may go hand in hand and the wrong procedure is not fatal absent prejudice.
The Court of Appeal in Gachira, approving Muthuita v Muthuita and Gatimu Kinguru, held there is no impediment to urging a claim on the basis of trust as well as adverse possession. Directions had converted the Originating Summons into a plaint. The defendants knew the trust claim rested on family relationship and long occupation, were not prejudiced, and were themselves guilty of the same flaw by filing a counter-claim through a replying affidavit.
How the suit land should be shared upon determination of the trust
Equally between the plaintiffs and the defendants, each side being the only parties laying claim to it.
The court was guided by the Lufu minutes recognizing Robert Wasike as a beneficiary of a piece of the Bitonge (suit) land. The parties refused to negotiate a settlement, starving the court of evidence on shares. The defendants are beneficiaries of other parcels (Kahuho 50 acres, Eldoret and Ziwa), live elsewhere, and there was no evidence the plaintiffs have other land. The court therefore shared the 22.239-acre parcel equally.
Legal principles established
#- Registration of land in a person's name does not extinguish the rights of persons entitled under a trust, including a customary trust; the registered proprietor remains subject to any obligation as trustee (Sections 24, 25(2) and 28(b) of the Land Registration Act)
- A court will not presume a trust except in clear cases; the party alleging a trust bears the burden of proving it
- It is not fatal to plead a claim in adverse possession and, in the alternative, a claim in trust, provided the issues are properly pleaded and proved
- Adopting the wrong procedure is not fatal where the other party is not prejudiced, per Article 159(2)(d) of the Constitution
- A court must treat a claim to land by adverse possession involving family with utmost circumspection, especially where occupation was with consent
Court orders
#- 1.The defendants' counter-claim is dismissed
- 2.A declaration that land parcel No South Malakisi/South Kulisiru/133 is registered in the name of Jefferson Wakhungu Wasilwa in trust for the plaintiffs and the defendants in equal shares
- 3.The trust is determined
- 4.The defendants to surrender the original title deed for cancellation within 30 days of the judgment to the Land Registrar Bungoma
- 5.The County Surveyor and Land Registrar Bungoma to demarcate the parcel into two equal portions, one registered in the joint names of the plaintiffs and the other in the joint names of the defendants
- 6.Each party to meet the respective costs of survey and registration of their portions
- 7.In default of surrender, the Land Registrar Bungoma to cancel the title deed notwithstanding the absence of the original
- 8.The defendants to jointly execute necessary documents for sub-division and registration; in default, the Deputy Registrar at liberty to execute on their behalf upon request
- 9.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (article 162(2) of the Constitution, as the court is a first-instance land court); suit commenced by Originating Summons under Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasike & 3 others v Wakhungu & another (Sued as the legal representative of the Estate of Jafferson Wakhungu Wasilwa) (Environment & Land Case 17 of 2019) [2023] KEELC 694 (KLR)", Case Analysis (2023). Originating Summons dated 11th June 2019 (amended 2nd March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/694/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.