Ochieng (Suing as Legal Representative and or Beneficiary of the Estate of Aggrey Ochieng Ogutu and in her Personal Capacity) v Ogutu (Suing as Administrator, Representative and or Beneficiary of the Estate of Hezron Nyadweny Ogutu and his Representative Personal Capacity) (Environment and Land Appeal E001 of 2024) [2024] KEELC 13288 (KLR) (21 November 2024) (Judgment)

Summary at a glance

Facts

The appellant claims customary trust by adverse possession over a portion of the suit property, measuring 2.80 ha, which she and her late husband had occupied for about 60 years. The respondent disputes the claim and seeks to register the disputed portion in his name.

Issues

• Whether the learned trial magistrate erred in not finding the respondent held the suit property in customary trust for the appellant by adverse possession.
• What orders should be issued?

Reasoning

The court held that the learned trial magistrate failed to apply the non-exhaustive criteria of customary trust as settled by the Supreme Court of Kenya in the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR.

Outcome

Affirmed

Orders

• The appellant’s representative is ordered to subdivide and register the disputed portion in the appellant’s name.
• The respondent is ordered to subdivide and transfer the disputed portion to the appellant at his cost.
• A permanent injunction is issued prohibiting the respondent from sub-dividing and transferring the disputed portion to any other person in default.

Remedies

• Subdivision and registration of the disputed portion in the appellant's name.
• Subdivision and transfer of the disputed portion to the appellant at the respondent's cost.
• Permanent injunction prohibiting the respondent from sub-dividing and transferring the disputed portion to any other person.

Authorities cited