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ELCDismissedEnvironment and Land Appeal (Homa Bay ELC)

Abuto v Nyakundi & 3 others (Environment and Land Appeal 36 of 2022) [2024] KEELC 1325 (KLR)

Environment and Land Court
13 March 2024
3,455 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Homa Bay dismissed a widow's land claim because she couldn't prove fraud or 12 years of adverse possession.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Homa Bay against the judgment of Hon. Tom Olando, PM delivered on 3rd August 2022 in Homa Bay CM ELC No. 18 of 2019, which declared that land parcel West Kasipul/Konyango/Kokal/2084 belongs to the 2nd respondent absolutely and awarded the appellant (plaintiff below) special damages of Kshs 48,800 and general damages of Kshs 100,000. The appellant, widow of the deceased initial owner, had claimed declarations of adverse possession and fraud, rectification of the register, eviction, damages for trespass and an injunction. On appeal she raised nine grounds, principally that the trial judgment violated Order 21 Rules 3 and 4 of the Civil Procedure Rules, that an inhibition order of 13th February 2015 defeated the 2nd respondent's title, that her suit was uncontroverted by the 3rd and 4th respondents, that contradictions on the purchase price were ignored, and that she had acquired title by adverse possession. G.M.A Ongondo, J held that the alleged procedural defects were curable under Article 159(2)(d); that fraud must be strictly proved and was not; that a spouse's occupation of matrimonial land is permissive and the 12-year period for adverse possession was not met; that the Matrimonial Property Act, 2013 does not apply retrospectively to the 2002 transfer; and that the 2nd respondent bought the land in 2014 before the inhibition order. The appeal was dismissed with costs to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the instant appeal is tenable?
  2. 2.Just orders to issue herein.

Key legal issues

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01

Whether the trial judgment complied with Order 21 Rules 3 and 4 of the Civil Procedure Rules

Holding

The judgment was duly dated and signed, set out the parties' cases, framed issues and gave reasons; any error in naming a non-party was curable under Article 159(2)(d)

Reasoning

The court found the judgment was dated and signed by the trial magistrate, the date amendment bore his signature, and the magistrate analysed issues and gave reasons. The inclusion of the name 'Johnson Odidi Odongo', a non-party, was an immaterial error curable under Article 159(2)(d) of the Constitution, so the judgment complied with Order 21 Rule 4.

p. 5
02

Whether the appellant proved fraud in the registration of the 1st respondent as proprietor

Holding

Fraud was not strictly proved; the appellant failed to tender evidence of fraud despite the opportunity

Reasoning

Relying on Gladys Wanjiru Ngacha and Kinyanjui Kamau, the court held allegations of fraud must be pleaded and strictly proved to a standard higher than balance of probabilities. The price discrepancy (Kshs 20,000 vs Kshs 100,000) was not satisfactorily explained but the appellant did not summon the Land Registrar, and Sections 107-108 of the Evidence Act place the evidential burden on the party asserting fraud.

p. 7
03

Whether the appellant had acquired title by adverse possession

Holding

Adverse possession was not made out; a spouse's occupation of matrimonial land is permissive and the requisite 12-year period was not proved

Reasoning

Applying Wilson Kazungu Katana and Richard Wefwafwa Songoi, the court found the appellant, being the wife of the initial owner, entered the land with permission, and her possession since 2011 fell far short of the requisite twelve years of open, exclusive, non-permissive occupation.

p. 6
04

Whether spousal consent under the Matrimonial Property Act invalidated the 2002 transfer

Holding

The Matrimonial Property Act, 2013 does not apply retrospectively to a 2002 transaction

Reasoning

The Act commenced on 16th January 2014 and does not operate retrospectively. Additionally, spousal rights are no longer an overriding interest under the Land Registration Act, so the 2002 sale by the appellant's husband without spousal consent could not be impugned on that basis.

p. 7
05

Whether the 2nd respondent could acquire lawful title given the inhibition order of 13th February 2015

Holding

The 2nd respondent purchased the suit land in 2014, before the inhibition order was issued

Reasoning

The court examined the evidence of DW2, who testified he bought the land from the 1st respondent in 2014, which predates the inhibition order of 13th February 2015; hence the order did not defeat the purchase.

p. 5

Legal principles established

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  • Fraud allegations must be pleaded and strictly proved to a standard higher than balance of probabilities
  • The burden is always on the plaintiff to prove his case on a balance of probabilities even where the case proceeds by way of formal proof
  • On a first appeal, the court reviews the evidence but exercises that jurisdiction with caution
  • A spouse's entry onto matrimonial land is permissive and cannot ground adverse possession
  • A curable error in a judgment, such as a wrong name, does not void the judgment under Article 159(2)(d)

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to bear the costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Homa Bay Chief Magistrate's Court, Environment and Land Case
18 of 2019
Jurisdiction invoked
First appeal from the trial court to the Environment and Land Court (the court stated it 'has the jurisdiction to review the evidence of the trial court')

Relief refused

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Quashing of the trial court's judgment upholding the 2nd respondent's absolute ownership of the suit land

The appeal lacked merit: no proof of fraud, no adverse possession established, and the alleged procedural defects were curable

p. 7

Costs

The appellant to bear the costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To that end, the instant appeal originated by way of a memorandum of appeal dated 22nd August 2022 is devoid of merit. It is hereby dismissed.
p. 7Final orders - dismissal of appeal
The appellant to bear the costs of this appeal.
p. 7Costs order
Allegations of fraud must be strictly proved............something more than a mere balance of probabilities is required.
p. 6Standard of proof for fraud
the appellant being a wife of the initial owner of the suit land, her entry onto the same was neither non-permissive nor non-consensual.
p. 6Adverse possession - spousal possession is permissive
the name 'Johnson Odidi Odongo' as shown in the finding is an error which is curable under Article 159 (2)(d) of the Constitution of Kenya, 2010.
p. 5Curing defects in judgments
this court has the jurisdiction to review the evidence of the trial court in order to determine whether the conclusion originally reached upon that evidence should stand.
p. 3Duty of first appellate court

Issues in the judgment

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minor

The judgment refers to the Land Registration Act as '2016 (2012)' on multiple occasions, an internally inconsistent citation of the statute's year

minor

The judgment refers to the order issued on 13th February 2015 variously as an 'order of inhibition' and a 'prohibition order'

minor

The case number of the appeal before this court is not stated in the judgment text

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, "Abuto v Nyakundi & 3 others (Environment and Land Appeal 36 of 2022) [2024] KEELC 1325 (KLR)", Case Analysis (2024). Environment and Land Appeal (Homa Bay ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1325/eng@2024-03-13

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