Aloyce Odhiambo Dulo (suing on his capacity and as the legal representative of the estate of (Dominic Dulo Owuor), Isabela Omolo Dulo, George Onono Dulo, Michael Ouma Dulo & Pius Okuku Dulo v Peter Osore, Daniel Oyuga, Francis Ogola Amoth, Gabriel Odongo & Margaret Opondo (Environment & Land Case 342 of 2017) [2019] KEELC 118 (KLR)
The bottom line
#A Kenyan court evicted land occupants who claimed they bought the property, because their sale agreements were unsigned and lacked required approvals.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Are the plaintiffs the registered owners of the suit land?
- 2.Whether the defendants trespassed into the suit land.
- 3.In the alternative, have the defendants proved their claim including adverse possession over the suit land against the plaintiffs in the other file suit to the requisite standards?
- 4.Are the parties entitled to reliefs sought in their respective pleadings?
Key legal issues
#Whether the plaintiffs are the registered owners of the suit land
Yes. The certificate of official search (PExhibit 5) shows PW1, PW2 and the other plaintiffs became registered proprietors on 8th October 2013 following succession of the deceased Dominic's estate.
The deceased Dominic was allocated the land during adjudication and was registered as proprietor. After his death on 16th June 2003, succession was conducted and the land transferred to the plaintiffs on 8th October 2013. Under sections 24, 25 and 26 of the Land Registration Act and sections 27 and 28 of the repealed Registered Land Act, they enjoy absolute proprietorship and protection under Article 40(1) of the Constitution.
Whether the defendants trespassed on the suit land
Yes. The defendants entered and occupied the suit land from 2006 without the plaintiffs' permission.
PW1 and PW2 consistently testified that the defendants entered the suit land in 2006 after the deceased Dominic and his family had moved to Sakwa. The defendants did not dispute being in occupation, and they received a notice to vacate in 2003. Their occupation without permission constitutes trespass, which is actionable per se.
Whether the defendants proved their claim of purchase and adverse possession in the other file
No. The claim failed on all counts.
The alleged sale agreements (DExhibits 1, 2 and 3) were not signed by the seller, the deceased Dominic, violating section 3(3) of the Law of Contract Act; no Land Control Board consent was obtained, rendering them void under section 6 of the Land Control Act. Full payment of purchase price was not proved, defeating constructive trust and equitable estoppel claims, and the triple requirements of adverse possession in Kasuve were not satisfied.
Whether the doctrines of constructive trust and equitable estoppel could aid the defendants despite want of Land Control Board consent
No, on the facts, because the defendants neither had valid written agreements nor proved full payment of the purchase price, so they were not bona fide purchasers for value.
While the court acknowledged the Court of Appeal's decision in William Kipsoi Sigei that constructive trust and equitable estoppel can protect a purchaser in full possession without consent, it held those doctrines inapplicable here because DExhibits 1, 2 and 3 did not show full payment of the purchase price, and the claimants were negligent in not executing written agreements, paying stamp duty or keeping copies of transfers.
Legal principles established
#- Trespass is any unjustified intrusion of one person upon land in the possession of another and is actionable per se.
- Failure to obtain Land Control Board consent under section 6 of the Land Control Act renders a sale agreement over agricultural land void and equity cannot soften the mandatory statutory provision.
- A claimant in adverse possession must prove possession that is open, exclusive, as of right and without interruption for twelve years.
- A party who fails to execute a written sale agreement, pay stamp duty and keep a copy of the transfer is negligent and cannot be a bona fide purchaser for value.
Court orders
#- 1.Judgment entered for the plaintiffs against the defendants jointly and severally in terms of orders (i), (ii), (iii) and (iv) sought in their amended plaint dated 17th April 2014 in the lead file (declaration of ownership and permanent injunction).
- 2.The defendants shall move out of the suit land within ninety (90) days from the date of judgment, in default the plaintiffs to evict them accordingly.
- 3.The defendants' claim in the other file (amended plaint dated 14th April 2014) is dismissed with costs to the plaintiffs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (transferred from Kisii Environment and Land Court)
- Consolidated with
- Formerly Kisii ELCC No. 475 of 2013; Peter Osore and 3 others v Aloyce Odhiambo Dulo and 4 others (the other file)
Relief refused
#The defendants'/plaintiffs-in-other-file's reliefs: declaration that any registration of title in the defendants' name is illegal, null and void; cancellation of title; subdivision and registration of portions; permanent injunction; declaration that the defendants' right to recover is barred under the Limitation of Actions Act and title extinguished under section 17 (adverse possession)
The claimants failed to prove valid written sale agreements (DExhibits 1, 2 and 3 were not signed by the deceased Dominic, contravened section 3(3) of the Law of Contract Act and lacked Land Control Board consent), failed to prove full payment of purchase price so were not bona fide purchasers for value, and failed to satisfy the requirements of adverse possession.
Costs
The defendants' claim in the other file is dismissed with costs to the plaintiffs; no express costs order on the lead file beyond the reliefs granted in the amended plaint which sought costs to be borne by the defendants.
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.
That Judgment be and is hereby entered for the plaintiffs against the defendants jointly and severally in terms of orders (i), (ii), (iii) and (iv) sought in their amended plaint dated 17 th April, 2014 in the lead file. The defendants shall move out of the suit land within the next ninety (90) days from this date in default the plaintiffs to evict them accordingly.
The defendants' claim against the plaintiffs originated by way of an amended plaint dated 14 th April, 2014 (the other file) is hereby dismissed with costs to the plaintiffs.
It is pretty clear from part B of PExhibit 5 that PW1, PW2 and the other plaintiffs are the registered proprietors of the suit land with effect from 8th October 2013.
trespass is any unjustified intrusion of one person upon the land in possession of another and that it is actionable per se
failure to obtain Land Control Board Consent makes the sale agreement void for all intents and purposes and the principles of equity can not soften or change this mandatory statutory provision
The defendant's case for adverse possession against the plaintiffs has not satisfied the triple requirements in Kasuve case (supra).
Issues in the judgment
#The Land Registration Act is cited inconsistently as 'Land Registration Act 2016 (2012)' in the judgment.
Discrepancy between the recorded date of the plaintiffs' entry (2006 per PW1 and PW2) and the plaint's allegation that the deceased was in possession 'up to and including the 16 th day of June 2003' with the defendants moving in thereafter; the plaint at paragraph 9 says the defendants took advantage of the absence of the deceased after June 2003, while testimony fixed entry at 2006.
Inconsistency in the identity of the seller in the alleged sale agreements: DW4's cross-examination names 'Okuku Joseph Dulo and Dominic Dulo Owuor' as sellers who did not sign the agreements.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Saka & 32 others v Henkel Polymer Co. Ltd t/a Henkel Chemiclas (EA) Ltd (Cause E421 of 2022) [2025] KEELRC 34 (KLR)[2025] KEELRC 34 (KLR)17 Jan 2025
- Kombo v Kagina & 4 others (Environment & Land Case 356 of 2015) [2022] KEELC 2466 (KLR)[2022] KEELC 2466 (KLR)29 Jun 2022not followed
Cite this brief
#Cite this brief
Caselaw, "Aloyce Odhiambo Dulo (suing on his capacity and as the legal representative of the estate of (Dominic Dulo Owuor), Isabela Omolo Dulo, George Onono Dulo, Michael Ouma Dulo & Pius Okuku Dulo v Peter Osore, Daniel Oyuga, Francis Ogola Amoth, Gabriel Odongo & Margaret Opondo (Environment & Land Case 342 of 2017) [2019] KEELC 118 (KLR)", Case Analysis (2019). Formerly Kisii ELCC No. 493 of 2013 (lead file) consolidated with Formerly Kisii ELCC No. 475 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/118/eng@2019-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.