Hellen Tum v Jepkoech Tapkili Metto & another [2018] KECA 323 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a woman's land claim because she couldn't prove her alleged customary marriage, and living on someone's land with permission isn't adverse possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal against Jepkoech abated upon her death, and whether the appeal against Johana could survive
- 2.Whether Hellen's suit was res judicata in respect of the issue of the validity of the transfer of the suit property to Johana, given the pending HCCC No. 25 of 2005
- 3.Whether Hellen proved her alleged 'woman to woman' marriage to Jepkoech under Nandi customary law and hence any interest in the suit property
- 4.Whether the removal of the restriction registered against the title and the subsequent transfer to Johana were fraudulent or irregular
- 5.Whether Hellen's occupation could found a claim by adverse possession
Key legal issues
#Effect of abatement of an appeal against one respondent on the appeal against other respondents
The appeal abated against Jepkoech twelve months after her death under Rule 99, but the appeal against Johana survived and could be determined.
Rules 85 and 99 of the Court of Appeal Rules, 2010 govern death of a party to an intended appeal and to an appeal. Since no application for substitution was made within twelve months, the appeal abated against Jepkoech. However, following Sultan Hasham Lalji, where a cause of action survives, the remaining parties' right to continue the appeal subsists. Hellen's appeal against Johana was therefore properly before the Court.
Res judicata in respect of the challenge to the transfer of the suit property
The challenge to the transfer based on the restriction was conclusively determined in HCCC No. 25 of 2005 and could not be revisited, though Hellen's claim of interest as a lawful wife had not been conclusively determined.
Section 7 of the Civil Procedure Act applies where parties litigating under the same title had a substantive issue determined between them. The validity of the transfer in light of the restriction was determined by Azangalala J in HCCC No. 25 of 2005. However, Hellen's claim to interest as lawful wife was not determined there, as her attempt to introduce it by counterclaim was rejected, so that issue remained open - but she failed to prove it.
Proof of 'woman to woman' marriage under Nandi customary law
Hellen failed to discharge the burden of proving the customary marriage, and therefore had no enforceable interest in the suit property.
The burden lay on Hellen as the party asserting the marriage. Crucial evidence in proof of customary marriage is evidence of the customary rites and their fulfilment. Hellen called no witnesses to the Koito ceremony, did not participate in dowry negotiations and called no witnesses to them, and did not call Roosevelt or Andrea who could have given material evidence. Her evidence fell short of proving the marriage, leaving nothing on which her alleged interest in the suit property could be anchored.
Adverse possession claim
Hellen's occupation of the suit property was by authority of Jepkoech and therefore not adverse; the belated adverse possession claim failed.
Hellen's possession flowed from permission granted by the registered proprietor. Possession permissive in its origin negates animus possidendi adverse to the true owner. The claim, raised belatedly, fell away on this basis without need to consider the period of possession.
Legal principles established
#- Where an appeal abates against one respondent on death, the appeal against the remaining respondents survives and is not extinguished.
- An appeal abates against a deceased respondent twelve months after death if no application for substitution is made under Rule 99 of the Court of Appeal Rules.
- Proof of a customary marriage requires evidence of the customary rites and that they were fulfilled.
- Occupation of land under authority of the registered proprietor is not adverse possession.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (High Court of Kenya) at Eldoret
- Eldoret E & L C No. 795 of 2012 (Formerly H.C.C.C 224 of 2011), consolidated with ELC No. 975 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Environment and Land Court under the Court of Appeal Rules, 2010
- Consolidated with
- Eldoret E & L C No. 975 of 2012 (Formerly H.C.C.C 44 of 2012)
Relief refused
#Hellen's challenge to the transfer of the suit property to Johana on the basis of the registered restriction
That issue had been substantively determined in HCCC No. 25 of 2005 and was res judicata
Declaration of Hellen's interest in the suit property through customary 'woman to woman' marriage
She failed to prove the marriage, calling no witnesses to the Koito ceremony, dowry negotiations, or the alleged union
Claim to ownership by adverse possession
Her occupation was by authority of Jepkoech and thus not adverse
Costs
The appeal was dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above is that this appeal has no merit. It is accordingly dismissed with costs.
although the appeal abated against Jepkoech, the appeal against Johana survived, and Hellen's right to continue with the appeal against Johana subsisted, and was not extinguished by the abatement of the appeal against Jepkoech.
one of the most crucial evidence in proof of a customary marriage is the evidence of the customary rites required to establish a customary marriage and proof that these rites were indeed fulfilled.
It is trite law that the burden of proof is on the party asserting the existence of any question of fact.
it was evident that Hellen was on the suit property by virtue of authority given to her by Jepkoech. Her occupation was therefore not adverse to Jepkoech's interest.
Issues in the judgment
#The coram and signature block spell the 1st respondent's name as 'Jepkoech Tapkili Metto' and refer to Jepkoech throughout with both male ('her' and 'she' in places, and 'his' elsewhere) and inconsistent gendered pronouns; the judgment also uses 'Johana' and 'Johanna' interchangeably for the 2nd respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Tum v Jepkoech Tapkili Metto & another [2018] KECA 323 (KLR)", Case Analysis (2018). Civil Appeal No. 338 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/323/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.