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ELCPartially AllowedNot stated in the judgment (Bungoma ELC Appeal from Bungoma CMCC trial suit)· [2023] KEELC 695 (KLR)

Wekesa ((Suing as a legal representative & administrator of the Estate of Benedict Wanyonyi Biketi – Deceased)) v Werunga & another (Environment and Land Appeal 1 of 2021) [2023] KEELC 695 (KLR)

Environment and Land Court
7 January 2023
5,608 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a land title built on a void tribunal award, ruling long occupation cannot cure an illegally acquired title.

What this practically means

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Executive summary

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The Appellant, administratrix of the estate of Benedict Wanyonyi Buketi, appealed against the dismissal by the Chief Magistrate's Court at Bungoma (judgment of 16th December 2020) of her claim for cancellation of the title to land parcel East Bukusu/North Kanduyi/684 registered in the name of the 1st Respondent, together with eviction. The deceased had purchased the land from the 2nd Respondent and was registered in 1993; following his death in 1996, the 1st Respondent's late husband obtained title in 2007 through a decree adopting an award of the Kanduyi Land Disputes Tribunal, and the 1st Respondent inherited it by transmission in 2014. The Appellant pleaded fraud. The magistrate dismissed the suit as time-barred, holding the 1st Respondent's husband's 1975 agreement took precedence. On appeal, the ELC (Boaz N. Olao J) re-evaluated the evidence as required on a first appeal and found: (1) limitation ran from the Appellant's 2009 discovery of the fraud under Section 26(a) of the Limitation of Actions Act, so the 2015 suit was in time; (2) the Tribunal had no jurisdiction over registered title and its proceedings cancelled a deceased person's title without his being a party, rendering the adopting decree a nullity; (3) the 2nd Respondent owned nothing in 1975, so the sale to Kituyi was an illegal contract conveying no interest and Kituyi was no bona fide purchaser; (4) the defective title attracted no protection under Sections 26 and 28 of the Land Registration Act or Article 40(6) of the Constitution. Grounds 6 and 9 failed; the rest succeeded. The appeal was allowed, the trial judgment set aside, the 1st Respondent's title cancelled, the land reverted to the Appellant, eviction ordered within three months, and costs awarded to the Appellant in both courts.

Key legal issues

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01

Limitation - when time begins to run in a fraud-based land claim

Holding

The trial magistrate erred in holding the suit time-barred; time under Section 7 read with Section 26(a) of the Limitation of Actions Act runs from discovery of the fraud (2009), so the 2015 suit was in time

Reasoning

The magistrate wrongly computed time from the 1986 sale. The Appellant discovered the fraud in 2009 upon obtaining letters of administration and conducting a search. Even computing from Kituyi's 2007 registration, the 12-year period had not expired by 2015 when the suit was first filed in the superior court.

p. 5
02

Jurisdiction of the Land Disputes Tribunal and validity of the resulting title

Holding

The Tribunal had no jurisdiction over title to registered land, and its proceedings cancelled a deceased person's title without him being a party; the decree in Bungoma CMCC LDT Case No 18 of 2004 was a nullity

Reasoning

At the time of the 2004 Tribunal proceedings the suit land was still registered in the deceased's name and he had died in 1996, so he was never a party. The award was nonetheless adopted and his title cancelled. The first appellate court, exercising its duty to determine the case finally, found the decree and the titles flowing from it illegal and void.

p. 7
03

Bona fide purchaser for value

Holding

Kituyi was not a bona fide purchaser because the 2nd Respondent had no title in 1975 and a search would have revealed this; payments under an illegal contract conferred no interest

Reasoning

The register showed Wafula Sindani as first proprietor and the 2nd Respondent only became registered in 1979 pursuant to a Kitale RMCC decree. The 1975 agreement was therefore an illegal contract; the vendor 'had No apparent valid title'. Kituyi's payments, however long continued, were based on an illegal contract and passed no interest transmissible to the 1st Respondent.

p. 9
04

Protection of title and overriding interests

Holding

A title acquired illegally or unprocedurally is not protected under Sections 26(1)(b) and 28 of the Land Registration Act nor by Article 40(6) of the Constitution

Reasoning

Although Section 26(1) recognises a certificate of title as evidence of ownership, the statutory and constitutional protection does not extend to property not lawfully acquired. Long occupation since 1975 cannot cure a defective root of title, and the 1st Respondent could not claim overriding interests having relied throughout on the validity of her title.

p. 7

Legal principles established

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  • A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, giving allowance for not having seen or heard the witnesses
  • Land Disputes Tribunals had no jurisdiction to determine disputes involving title to registered land or to cancel a registered title
  • A title acquired illegally, unprocedurally or through a corrupt scheme is not protected under Section 26(1)(b) of the Land Registration Act
  • Subsequent acts premised on a nullity cannot accrue legitimacy; no person can benefit from a defective title no matter how long they occupy
  • Time under the Limitation of Actions Act in fraud-based claims runs from discovery of the fraud under Section 26(a)
  • A person cannot transfer a better title than he has; a sale by a non-owner is void ab initio

Court orders

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  1. 1.The 1st Respondent's title issued on 3rd October 2014 in respect of land parcel No East Bukusu/North Kanduyi/684 is cancelled and shall revert to the Appellant
  2. 2.The 1st Respondent, her agents, servants and anybody claiming through her shall vacate the suit land within three (3) months of the judgment
  3. 3.In default of vacation, the Appellant shall be at liberty to evict them
  4. 4.The Appellant shall have the costs both in the appeal and in the court below

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 26(a)
  • Civil Procedure ActSection 78(1)(a)
  • Land Registration ActSection 26(1) and 26(1)(b)
  • Land Registration ActSection 28
  • Constitution of KenyaArticle 40(6)

Cases cited (10)

  • Peters -v- Sunday Post Ltd
    [1958] E.A. 424
  • Selle & Another -v- Associates Motor Boat Company Ltd
    [1968] E.A 123
  • Mwanasokoni -v- Kenya Bus Services
    [1985] KLR 931
  • Macfoy -v- United Africa Co Ltd
    [1961] 2 ALL ER 1169
  • Kawaljeet Singh Rekhi -v- Peter Wainana Kamau & 2 Others
    [2016] eKLR
  • Chemey Investment Ltd -v- A-G
    [2018] eKLR
  • Jane Gachoki Gathecha -v- Priscilla Nyawira Gitungu & Another
    Civil Appeal No 343 and 345 of 2002 [2008] KLR
  • Mistry Amar Singh -v- Kulubya
    [1963] E.A 408
  • Scott -v- Brown Doering McNab & Co
    [1892] 2 QB 724
  • Katende -v- Haridar & Company Ltd
    [2008] 2 E.A 173
On appeal from
Chief Magistrate's Court (Bungoma)
Suit over land parcel East Bukusu/North Kanduyi/684 (trial before Hon. S. O. Mugute)
Jurisdiction invoked
Appellate jurisdiction over the subordinate court's decision (first appeal); Section 78(1)(a) of the Civil Procedure 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, "Wekesa ((Suing as a legal representative & administrator of the Estate of Benedict Wanyonyi Biketi – Deceased)) v Werunga & another (Environment and Land Appeal 1 of 2021) [2023] KEELC 695 (KLR)", Case Analysis (2023). Not stated in the judgment (Bungoma ELC Appeal from Bungoma CMCC trial suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/695/eng@2023-02-07

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