Onjomah v Seth (Environment & Land Case 97 of 2015) [2024] KEELC 5310 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Adverse possession
Not proved; the plaintiff paid the purchase price but never took actual possession, and any possession was not peaceful given the deceased's 2004 hostility and the 2005 demand for a refund
The plaintiff pleaded demarcation, possession, development and farming but produced no photographs or physical evidence of 28 years of occupation. Further, the deceased's complaint to the Assistant Chief in 2004 and the advocate's refund demand of 15 March 2005 showed the possession was contested, hence not nec vi, nec clam, nec precario. Time was held to run only from the final payment, and possession failed both the occupation and peacefulness requirements.
Resulting trust
Established; having paid the full purchase price of Kshs.18,600 under the written agreement of 1 January 1987, a resulting trust arose in favour of the plaintiff, and equity disfavours the deceased's unjust retention of the price
The court found the written sale agreement authentic and unchallenged; the alleged 2004 refund document was unexecuted and could not bind the parties, and the 2005 demand letter showed the refund was never effected. Following Twalib Hatayan and Charles Kandie, a resulting trust automatically arises in favour of the person who advanced the purchase money. Occupation is unnecessary to prove a trust in land.
Suing one co-tenant only
Proper; the defendant held the largest share (4.96 Ha), was the deceased's legal representative, and the plaintiff's 2½ acres could be carved from his identifiable share
The court held that change of ownership does not interrupt adverse possession claims, that only the plaintiff's claim is severable from the defendant's share, and that the other co-tenants were not children of the deceased but purchasers. The claim of 2½ acres could only be apportioned from the defendant's portion.
Unpleaded issue
The court could determine the resulting trust even though not embodied in the main prayers, since payment of the purchase price ran through the evidence and submissions and was left to the court
Relying on Odd Jobs v Mubia and its progeny, the court held an unpleaded issue may ground a decision if the trial shows it was left to the court. Both parties' affidavits and submissions canvassed whether the plaintiff paid the full purchase price, making the trust issue properly before the court.
Evidentiary weight of the sale agreement
The written agreement of 1 January 1987 spoke for itself; the defendant's evidence of an oral agreement at Kshs.25,000 was inadmissible hearsay under the parol evidence principle
The defendant was not a party or witness to the written agreement, its authenticity was never challenged, and it bore the deceased's thumbprint and ID details. The parol evidence rule bars oral evidence to contradict a complete written contract, so the alleged oral agreement and refund resolution could not displace it.
Legal principles established
#- A claimant in adverse possession must prove exclusive, open, peaceful and uninterrupted possession for 12 years without force, stealth or permission of the owner
- A purchaser who has paid the full purchase price in circumstances where the transferor refuses to complete holds the vendor's title subject to a resulting trust in favour of the purchaser, and actual occupation is not required to prove a trust in land
- A court may base its decision on an unpleaded issue if it appears from the course of the trial that the issue was left to the court for decision
- Change of ownership of the land does not interrupt a claim based on adverse possession
Court orders
#- 1.A declaration that the Defendant holds title to a portion measuring 2½ acres out of his share of 4.96 Hectares in land parcel No Marachi/Bumala/958 in trust for the Plaintiff
- 2.That trust is hereby determined
- 3.The Defendant shall within 45 days of the delivery of the judgment surrender to the Land Registrar Busia the original title deed to land parcel No Marachi/Bumala/958 and execute all relevant documents to facilitate demarcation so that 2½ acres out of the Defendant's share is surveyed and registered in the Plaintiff's name
- 4.In default, the Deputy Registrar of the Court shall execute all such documents on behalf of the Defendant and the Land Registrar and Surveyor Busia shall proceed as directed notwithstanding the absence of the original title deed
- 5.The Defendant shall meet the Plaintiff's costs
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act; Environment and Land Court original jurisdiction (not expressly cited in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onjomah v Seth (Environment & Land Case 97 of 2015) [2024] KEELC 5310 (KLR)", Case Analysis (2024). Environment & Land Case 97 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5310/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.