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ELCPartially AllowedOriginating Summons dated 11th June 2021 (Busia)· [2024] KEELC 3444 (KLR)

David Wabwire Wafula & Another v George Odongo Wesonga

Environment and Land Court
29 April 2024
BOBoaz N. Olao
7,129 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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David Wabwire Wafula and Stephen Were Oundo, personal representatives of the Estate of Peter Oundo Wafula, sued George Odongo Wesonga by Originating Summons claiming that the deceased Wafula had acquired 2/3 of plot BMC/LH/7983/165 by adverse possession, or alternatively that the Defendant held that portion in trust for them, and seeking cancellation of the Defendant's title and their registration. The Defendant maintained the land was allocated solely to his late father Dodofiko in the 1950s, was Government land incapable of adverse possession, and had devolved to him through succession in Busia High Court Succession Cause No 68 of 2012. The court framed three issues: adverse possession, trust, and costs. On adverse possession, it held the claim could not stand because the land was never registered in the Defendant's or Dodofiko's name; it remained public land vested in the County Government of Busia under Article 62(2) of the Constitution, excluded from the Limitation of Actions Act by Section 41, and the Defendant held neither title nor letter of allotment, his application to the National Land Commission being still pending. On trust, however, the court found the 1979 County Council minutes approved transfer to both Dodofiko and Wafula, both families paid rates and collected rent separately, the Defendant admitted on oath that the Plaintiffs' share of rent was 2/3, and a 2016 family meeting signed by the Defendant recognized joint ownership. Finding no express trust but invoking constructive trust to prevent unjust enrichment, the court declared the Defendant holds 2/3 of the plot in trust for the Plaintiffs, ordered their registration as proprietors of that share, directed execution of transfer documents (with the Deputy Registrar to sign in default), and ordered each party to bear their own costs. Judgment delivered electronically on 29th April 2024.

Key legal issues

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01

Adverse possession of the 2/3 portion

Holding

Claim rejected - the land is unallocated public land of the County Government of Busia; the Defendant holds no registered title or allotment letter against which time could run, and s.41 of the Limitation of Actions Act excludes public land

Reasoning

Section 38(1) requires a claim against a registered proprietor. The documentary evidence, including the Defendant's own application for a letter of allotment still pending before the National Land Commission, shows the land remains County Government property. Article 62(2) vests such public land in the county government, and Section 41 of the Limitation of Actions Act excludes title by adverse possession over government/county land.

p. 8
02

Trust over the 2/3 portion

Holding

Claim allowed - a constructive trust imposed; the Defendant holds 2/3 in trust for the Plaintiffs

Reasoning

The 1979 County Council minutes approved transfer of the plot to both Dodofiko and Wafula; both paid rates; the Defendant admitted on oath that tenants pay rent on a 2/3 to 1/3 basis in favour of the Plaintiffs; and the 2016 family meeting minutes, signed by the Defendant, recognized joint ownership. Though no express trust was created, equity will impose a constructive trust to prevent the Defendant's unjust enrichment through sole registration.

p. 13

Legal principles established

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  • Adverse possession cannot run against public land vested in a county government; a claim under s.38(1) lies against a registered proprietor
  • A trust is not lightly implied; the party pleading a trust must prove it, though the court may impose a constructive trust to prevent unjust enrichment
  • The Succession Court's distribution of an estate does not oust the Environment and Land Court's jurisdiction over ownership or trust claims in land

Court orders

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  1. 1.The Defendant holds a portion measuring 2/3 out of the land parcel No BMC/LH/7983/165 in trust for the Plaintiffs
  2. 2.The Plaintiffs shall be registered as proprietors of 2/3 of the land parcel No BMC/LH/7983/165
  3. 3.The Defendant shall execute all the relevant documents to facilitate the registration of 2/3 of the land parcel in the names of the Plaintiffs
  4. 4.In default, the Deputy Registrar shall be at liberty upon request to sign all such documents on behalf of the Defendant
  5. 5.Each party to bear their own costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes based on trust or interest in land (per Karanja J's ruling, remedy lies in the Environment and Land Court); claim brought under Section 38(1) of the Limitation of Actions 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, "David Wabwire Wafula & Another v George Odongo Wesonga", Case Analysis (2024). Originating Summons dated 11th June 2021 (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3444/eng@2024-04-29

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