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)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation - when time begins to run in a fraud-based land claim
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
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.
Jurisdiction of the Land Disputes Tribunal and validity of the resulting title
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
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.
Bona fide purchaser for value
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
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.
Protection of title and overriding interests
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
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.
Legal principles established
#- 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
#- 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.The 1st Respondent, her agents, servants and anybody claiming through her shall vacate the suit land within three (3) months of the judgment
- 3.In default of vacation, the Appellant shall be at liberty to evict them
- 4.The Appellant shall have the costs both in the appeal and in the court below
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.