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ELCAllowedEnvironment and Land Appeal E030 of 2022· [2023] KEELC 21863 (KLR)

M'Mpango & another (Suing as the legal representatives of Nahashon M'Kiambati M'Mpango) v MM'R & another

Environment and Land Court
22 November 2023
4,982 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru against the judgment of Hon. L.N Juma SRM in CM ELC No. 136 of 2019, which had dismissed the appellants' claim. The appellants, suing as legal representatives of Nahashon M'Kiambati M'Mpango, alleged that land registered in their father's name (LR Ruiri/Rwarera/211, 14.80 acres) was in fact held for the 1st appellant, who as a woman could not own land in 1969, and that the respondents fraudulently subdivided and transferred portions to themselves. The respondents asserted lawful transfer by the deceased, long occupation, limitation, res judicata and lack of jurisdiction. CK Nzili J framed eight issues. On the consent dated 30.7.2020 to compromise the suit, the court held it was binding: the respondents signed it with knowledge of the plaint, never pleaded repudiation in their defence or witness statements, did not cross-examine PW1 on alleged duress, and were estopped from denying it. On trust, the court found the appellants pleaded and proved a constructive/resulting trust through unchallenged evidence, including that of the surveyor PW2, and that trust claims are not time-barred under Section 26 of the Limitation of Actions Act. Adverse possession failed because entry was permissive. The adjudication proceedings over titled land were a nullity. Allowing the appeal, the court invalidated the respondents' titles, ordered reversion to the deceased's name to be dealt with under the Law of Succession Act, and awarded costs to the appellants.

Key legal issues

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01

Whether the consent dated 30.7.2020 was binding

Holding

The consent was binding; the respondents failed to impeach it, having signed it with full knowledge, pleaded no repudiation, and not cross-examined PW1 on the alleged coercion.

Reasoning

The respondents signed the consent after being served with the plaint and sought its adoption in court. Their defence and witness statements were silent on it; repudiation came months later by application. No cross-examination on alleged duress; the 1st respondent, a signatory, never testified to disown it. Estoppel applied.

02

Whether the respondents' titles were subject to a trust in favour of the appellants

Holding

Yes; the appellants pleaded and proved a constructive/resulting trust, the land having been registered in the deceased father's name on their behalf because women could not own land then.

Reasoning

The appellants pleaded the trust and led unchallenged evidence, including that of PW2 the surveyor, that the 1st appellant applied for the land which was registered in her father's name as trustee. The respondents offered only general denial and did not challenge the circumstances of registration or entry as licensees.

p. 8
03

Whether the claim was time-barred or defeated by adverse possession

Holding

No; trust claims are not time-barred under Section 26 of the Limitation of Actions Act, and the respondents entered as licensees so adverse possession was not established.

Reasoning

Section 26 of the Limitation of Actions Act exempts trust claims. The respondents led no evidence of adverse possession; entry was permissive in respect of 2 acres only, and permissive entry negates adverse possession.

p. 8
04

Whether the adjudication proceedings were a nullity

Holding

Yes; the land adjudication officer had no jurisdiction over already-titled land, so the objection proceedings and awards were a nullity.

Reasoning

Title deeds had been issued before the 2018/2019 objections; disputes on titled land fall outside adjudication. A court without jurisdiction cannot found valid orders, per Macfoy vs United Africa Company Ltd.

Legal principles established

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  • A consent order has contractual effect and can only be set aside on grounds which justify the setting aside of a contract, such as fraud, collusion, duress or contrary to the policy of the court.
  • The burden of impeaching a consent lies on the party alleging it was procured by fraud, coercion or undue influence.
  • Trust is a question of fact proved through evidence, and overriding interests need not be listed in the register of title.
  • Claims founded on trust are not barred by limitation under Section 26 of the Limitation of Actions Act.
  • Proceedings before a land adjudication officer over land already titled are a nullity.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The lower court suit is allowed with costs
  3. 3.The titles to the suit land held by the respondents are invalidated as being subject to the rights of the appellants
  4. 4.The titles shall revert to the names of the deceased before the subdivision and the transfers, in the initial status, to be dealt with as per the Law of Succession Act
  5. 5.Costs to the appellants

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 26, 38
  • Evidence ActSections 107-109, 107-112
  • Constitution of KenyaArticle 40(3), Article 159(2)(c)
  • Land Adjudication ActCap 284
  • Law of Contract Actnot specified
  • Trustee Actnot specified
  • Law of Succession Actnot specified

Cases cited (23)

  • Mutsonga vs Nyati
    (1989) KLR 428

    Impeachment of title requires proof of fraud, misrepresentation or illegality

  • Millicent Wambui vs Nairobi Botanical Gardening Ltd
    (2013) eKLR

    Repudiation of a consent before its adoption

  • Haron Onyancha vs Public Service Commission and another
    (2017) eKLR

    Limitation of actions

  • Iga vs Makerere University
    (1972) E.A 65

    Limitation of actions

  • Abdalla Mangi Mohammed and 5 others vs Lazarus Benja & others
    (2020) eKLR

    Exhaustion of statutory remedies; res judicata

  • Raila Amollo Odinga vs IEBC
    (2017) eKLR

    Parties are bound by their pleadings and issues flow from pleadings

  • Ransa Co. Ltd vs Manca Francesco & others
    (2015) eKLR

    All particulars of fraud must be pleaded and proved

  • Kasmir Wesonga Ongoma and another vs Wanga
    (1987) eKLR

    Consent order has contractual effect, set aside only on grounds justifying setting aside a contract

  • Flora Wasike vs Desmond Wambeolla
    (1980) 1 KAR

    Consent order has contractual effect

  • Broke Bony Liebig Ltd vs Methya
    (1975) E.A 266

    Court cannot interfere with a consent judgment except on good grounds for varying or rescinding the contract

  • SMN vs ZMZ & 3 others
    (2017) eKLR

    Consent judgment impeachable only for fraud, collusion or contrary to court policy

  • Board of Trustees NSSF vs Michael Mwalo
    (2015) eKLR

    Consent judgment impeachable only for fraud, collusion or contrary to court policy

  • Eunice Wanjiru Gathithi vs Cannon Insurance (K) Ltd
    (2021) eKLR

    Consent order binding unless collusion, fraud, contrary to policy or without sufficient material facts

  • Heartbeat Ltd vs Ng'ambwa
    (2018) eKLR

    Burden on party to establish intention to hold land in trust

  • Juletabi Africa Adventure Ltd & another vs Michael Lockley
    C.A No. 75 of 2016

    Intention to hold land in trust

  • Mbui vs Maranya
    (1993) eKLR

    African generosity/permissive entry negating adverse possession

  • Twalib Hatayan & another vs Said Saggar Ahmed Al-Heidy
    (2015) eKLR

    Trusts created expressly, by agreement or by operation of law; constructive and resulting trusts

  • Kiebia vs M'Lintari
    (2014) eKLR

    Trust proved through evidence; overriding interests need not be listed in register

  • Nyambura Kamau vs Humphrey Mbaka
    Nyeri C.A No. 342 of 2010

    Trust is a matter of fact proved by evidence

  • Macfoy vs United Africa Company Limited
    (1961) 3 All E.R 1169

    Proceedings without jurisdiction are a nullity

  • Kweyu vs Kweyu
    C.A No. 8 of 1990

    Permissive entry defeats adverse possession

  • Njenga Kimani vs Kimani Ng'ang'a Wainaina
    (2017) eKLR

    Permissive entry defeats adverse possession

  • Samuel Kihamba vs Mary Mbaisi
    (2015) eKLR

    Permissive entry defeats adverse possession

On appeal from
Senior Resident Magistrate's Court at Meru
CM ELC No. 136 of 2019
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court in environment and land matters (Environment and Land Court 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, "M'Mpango & another (Suing as the legal representatives of Nahashon M'Kiambati M'Mpango) v MM'R & another", Case Analysis (2023). Environment and Land Appeal E030 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21863/eng@2023-11-22

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