Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case 58 of 2016 (consolidated with Busia ELC Case No 19 of 2016)· [2023] KEELC 19842 (KLR)

Nyongesa Wandera Maurice & another v Alfred Edwin Didymus Khaseke & 3 others

Environment and Land Court of Kenya
19 September 2023
6,408 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

#

A Kenyan court split a family land and burial dispute: the widow's family can bury the deceased on one parcel, but not on the plaintiff's land.

What this practically means

#

Executive summary

#
This judgment by BN Olao J of the Environment and Land Court at Busia resolves two consolidated suits (ELC 58 of 2016, lead file, and ELC 19 of 2016) arising from a dispute over where the remains of Jackson Okoth Khaseke, dead since June 2016 and still unburied, should be interred. The Plaintiffs, relying on a confirmed grant in Busia High Court Succession Cause 336 of 2013, claimed parcel 1880 had been validly transmitted to and purchased by the 1st Plaintiff, and that they held parcel 1882 in trust for the deceased and the 3rd Defendant. The Defendants alleged the registrations were fraudulent products of a fraudulent succession process and insisted the deceased be buried on parcel 1880, his father's land. The court held that allegations of fraud must be specifically pleaded and proved; the Defendants did neither and filed no counterclaim. The 1st Plaintiff's title, derived through a judicial process not set aside on appeal, stood under section 26(1) of the Land Registration Act, and the grant could only be challenged in the succession court. The court permanently injuncted the Defendants from burying the deceased on parcel 1880 and ordered the 1st and 2nd Defendants to vacate parcels 1880 and 1882. However, it terminated the trust over parcel 1882, ordered cancellation of the trustees' names and registration of the title in the 3rd Defendant's name and the deceased's legal representative, and gave the 3rd Defendant liberty to bury the deceased on 1882 or elsewhere. The prayer for release of the allegedly detained 3rd Defendant was refused for want of jurisdiction. Each party was ordered to bear its own costs.

Key legal issues

#
01

Burial rights over land parcel BUKHAYO/MATAYOS/1880

Holding

The Defendants are permanently restrained from burying the deceased on parcel 1880, which belongs to the 1st Plaintiff.

Reasoning

The 1st Plaintiff's title to parcel 1880 derives from a confirmed grant of 18 February 2015 in Succession Cause 336 of 2013 and transmission under section 50(1) of the Land Act. The Defendants alleged fraud but neither pleaded nor proved it to the required standard, and filed no counterclaim. As registered proprietor, the 1st Plaintiff enjoys constitutional protection of property rights under Article 40(1).

p. 5
02

Status of the trust over parcel BUKHAYO/MATAYOS/1882

Holding

The trust is terminated; the register must be rectified and the title registered in the names of the 3rd Defendant and the deceased's legal representative.

Reasoning

The title deed shows the 2nd Plaintiff and Colomitina hold parcel 1882 in trust for the deceased and the 3rd Defendant until age 18. Both beneficiaries are now adults, confirmed by DW5. Trustees cannot hold in perpetuity, so the trust must end and the Plaintiffs be injuncted from interfering with the parcel.

p. 11
03

Jurisdiction over the alleged detention of the 3rd Defendant

Holding

The court declined prayer C for want of jurisdiction.

Reasoning

The ELC's jurisdiction under section 13 of the Environment and Land Court Act covers disputes relating to environment, use, occupation and title to land. Ordering the release of a person allegedly detained is outside that jurisdiction and would usurp another court's mandate.

p. 8
04

Challenge to the grant in Succession Cause 336 of 2013

Holding

The court cannot interrogate the grant; it may only be challenged in the succession court.

Reasoning

The Defendants alleged the grant was fraudulently obtained and revocation proceedings were pending. The revocation application was dismissed and an appeal's status was unclear. This Court cannot sit on appeal over another judge or assume succession jurisdiction.

p. 11
05

Eviction of the 1st and 2nd Defendants

Holding

Both Defendants must vacate parcels 1880 and 1882 within 30 days or be evicted.

Reasoning

The 2nd Defendant's alleged 2007 purchase from Francis Bwire Khaseke conferred no interest since the land was registered in Juma Odundo Khaseke's name under a restriction pending succession. Neither Defendant had a counterclaim to the parcels.

p. 11

Legal principles established

#
  • Allegations of fraud must be specifically pleaded and proved.
  • A certificate of title under section 26(1) of the Land Registration Act is prima facie evidence of ownership, impeachable only on proof of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition.
  • Registration obtained through a judicial process by a competent court, not set aside on appeal, is not lightly impeachable.
  • A trust created to hold land for minors ends when the beneficiaries attain majority; trustees cannot hold in perpetuity.
  • A grant of letters of administration can only be challenged in the succession court; the ELC has no jurisdiction to interrogate it.

Court orders

#
  1. 1.Permanent injunction restraining the Defendants from interring the remains of Jackson Okoth Khaseke on land parcel BUKHAYO/MATAYOS/1880.
  2. 2.Declaration that the Plaintiffs have no right to occupy or possess land parcel BUKHAYO/MATAYOS/1882.
  3. 3.Cancellation of the names of the 2nd Plaintiff and Colomitina as trustees on the register of BUKHAYO/MATAYOS/1882; surrender of the original title deed within 30 days for issuance of a new title in the names of the 3rd Defendant and the legal representative of the deceased; the trust is terminated.
  4. 4.Permanent injunction restraining Colomitina, the Plaintiffs and those acting through them from interfering with land parcel BUKHAYO/MATAYOS/1882.
  5. 5.The 3rd Defendant, her relatives and those acting through them at liberty to inter the deceased's remains on BUKHAYO/MATAYOS/1882 or any other land of their choice other than BUKHAYO/MATAYOS/1880.
  6. 6.The 1st and 2nd Defendants, their agents and servants to vacate land parcels BUKHAYO/MATAYOS/1880 and 1882 within 30 days or be evicted.
  7. 7.Each party to meet their own costs of the suit.

Authorities

#

Legislation

  • Environment and Land Court ActSection 13
  • Constitution of Kenya 2010Article 16(2)(b) [sic - evidently Article 162(2)(b)]
  • Constitution of Kenya 2010Article 40(1)
  • Land Act 2012Section 50(1)
  • Land Registration Act 2012Section 26(1)
  • Civil Procedure RulesOrder 40 Rule 6

Cases cited (3)

  • R.G. Peter -v- Lalji Makanji
    1957 E.A 314

    Fraud must be specifically pleaded and proved.

  • Kinyanjui Kamau -v- George Kamau
    2015 eKLR

    Fraud must be specifically pleaded and proved.

  • Ndolo -v- Ndolo
    2008 1 KLR (G & F) 742

    Fraud must be specifically pleaded and proved.

Jurisdiction invoked
Section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyongesa Wandera Maurice & another v Alfred Edwin Didymus Khaseke & 3 others", Case Analysis (2023). Environment & Land Case 58 of 2016 (consolidated with Busia ELC Case No 19 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19842/eng@2023-09-19

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