Francis Simiyu Wekesa - Deceased (substituted and represented by Eliud Sahenyi v Joseph Namasaka Nato & 10 others [2020] KEELC 1881 (KLR)
The bottom line
#A Bungoma court cancelled a land title and dismissed an eviction suit because the family living on the land for over 50 years had stronger rights than the registered owner.
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 suit is res judicata or sub judice in view of Bungoma ELC Case No. 3 of 2013
- 2.Whether the plaintiff, as registered proprietor, is entitled to vacant possession, injunction and damages for trespass
- 3.Whether the defendants' long occupation constitutes an overriding interest and whether a constructive trust may be imposed notwithstanding that it was not pleaded
- 4.Whether the plaintiff's claim is barred by limitation under Section 7 of the Limitation of Actions Act
- 5.Whether the title issued to the plaintiff should be cancelled
Key legal issues
#Res judicata and sub judice
The suit is neither res judicata nor sub judice Bungoma ELC Case No. 3 of 2013 because that suit was dismissed for want of prosecution and never heard and finally decided on the merits
The court traced the history of the earlier suit, finding it was dismissed on 17th November 2014 for non-appearance and an application to review that dismissal was dismissed on 4th October 2017. Applying Section 7 of the Civil Procedure Act and Court of Appeal authority, res judicata requires the former suit to have been heard and finally decided; a technical knock-out dismissal does not qualify. No application was pending in the earlier suit, defeating sub judice.
Validity of the plaintiff's title and defendants' overriding interests
Although registered proprietor, the plaintiff's title is impeached by overwhelming documentary evidence that Wekesa relinquished the land to NATO, whose successors' occupation constitutes an overriding interest
Section 25 of the Land Registration Act confers rights on the registered owner but Section 26(1) makes title prima facie only and impeachable. Letters from Settlement Officers and the Chief from 1965-1975, the 1989 receipt of Kshs 15,500 paid by NATO, Wekesa's own admission he never developed the land, and NATO's burial thereon establish voluntary relinquishment. Under Section 30(g) of the repealed Registered Land Act, possession is an overriding interest per Obiero v Opiyo.
Constructive trust on an unpleaded issue
The court imposed a constructive trust in favour of the defendants even though it was not pleaded, invoking the court's inherent powers
Although the defendants never pleaded a counter-claim founded on trust or adverse possession, following MACHARIA MWANGI MAINA and HUSSEY v PALMER, and ODD JOBS v MUBIA on unpleaded issues, the court held that substantive justice permits imposing a constructive trust where justice and good conscience require it and no breach of law was proved against the defendants.
Limitation of actions
The plaintiff's claim to recover land is statute-barred, his cause of action having accrued on his dispossession in 1964
Under Sections 7 and 9(1) of the Limitation of Actions Act, the right to recover land accrues on dispossession. The defendants' uncontroverted evidence was occupation since 1964; Wekesa admitted not developing the land. Limitation is a jurisdictional issue the court may raise suo motu, and the suit filed in 2015 far exceeded the twelve-year period.
Legal principles established
#- A plea of res judicata is not available unless the former suit was heard and finally decided on its merits; dismissal for want of prosecution does not sustain the plea
- The burden of proving res judicata or sub judice lies on the party alleging it
- An issue of limitation is jurisdictional and may be raised by the Court suo motu
- A registered title is prima facie evidence of ownership and may be impeached; rights of persons in actual occupation constitute overriding interests under the repealed Registered Land Act
- A court may in appropriate cases base its decision on an unpleaded issue, including imposition of a constructive trust, where it appears the issue was left to the Court for decision
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.The Land Registrar Bungoma is directed to cancel the title to land parcel NO BUNGOMA/KABISI/323 issued on 11th September 2009 in the names of FRANCIS SIMIYU WEKESA and to issue a new title in the names of JOSEPH NAMASAKA NATO in trust for himself and his siblings
- 3.The plaintiff shall meet the costs of this suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; inherent powers under Section 3A of the Civil Procedure Act invoked for the cancellation of title
Relief refused
#Declaration of exclusive right of possession and occupation of the suit property and vacant possession
The defendants established overriding interests through long occupation and evidence that Wekesa relinquished the land to NATO; the claim was also time-barred
Injunction restraining the defendants from the suit property
The plaintiff's suit was dismissed as devoid of merit
General damages for trespass
The defendants are not trespassers; their rights are overriding interests
Costs
The plaintiff shall meet the costs of this suit
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.
1. The plaintiff’s suit is dismissed. 2. The Land Registrar Bungoma is directed to cancel the title to land parcel NO BUNGOMA/KABISI/323 issued on 11 th September 2009 in the names of FRANCIS SIMIYU WEKESA and to issue a new title in the names of JOSEPH NAMASAKA NATO in trust for himself and his siblings. 3. The plaintiff shall meet the costs of this suit.
The proper position must now be that unless a suit has been “heard and finally decided” in a former suit, a plea of res – judicata is not available.
I must also point out to counsel that a suit can either be res – judicata or sub – judice but not both.
It would be unconscionable and a complete travesty of justice for this Court to treat the defendants as trespassers and order that they give vacant possession of the suit property to the plaintiff and be injuncted from remaining thereon or even pay him damages as sought in the plaint.
WEKESA’s cause of action accrued in 1964 and this suit is clearly out of time and that alone disentitles the plaintiff to the orders sought therein.
a Court may allow evidence to be called and may base it’s decision on an unpleaded issue if it appears from the cause followed at the trial that the unpleaded issue has infact been left to the Court for decision.
Issues in the judgment
#The judgment states both that the defendants pleaded res judicata (Section 7) and sub judice (Section 6) arising from the same earlier case, which the court itself notes are mutually exclusive
The suit title's case number is not stated in the judgment text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Simiyu Wekesa - Deceased (substituted and represented by Eliud Sahenyi v Joseph Namasaka Nato & 10 others [2020] KEELC 1881 (KLR)", Case Analysis (2020). Not stated in the judgment (Bungoma ELC suit filed 11th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1881/eng@2020-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.