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Court of AppealAllowedCivil Appeal No. 115 of 2015

Wensley Barasa v Immaculate Awino Abongo

Court of Appeal
28 September 2017
2,854 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a land buyer cannot evict someone already living on the property—the occupier's rights 'run with the land' and bind the new owner.

What this practically means

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Executive summary

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Wensley Barasa appealed against a High Court decision (Mukunya, J, 28 October 2015) ordering his eviction from land parcel No. E. Bukusu/S. Kanduyi/5778 at the suit of Immaculate Awino Abongo, who had purchased the land from Aggrey Nandwa in December 2010. The High Court had held that Barasa established no interest in the property and that Immaculate was a bona fide purchaser for value without notice. Barasa's appeal contended that his occupation since about 1993 had created an interest by adverse possession amounting to an overriding interest. The Court of Appeal, in a single judgment of the court delivered by Musinga, Gatembu Kairu and Murgor JJA, framed two issues: whether Barasa was in occupation when Immaculate purchased the land, and whether she was entitled to evict him. The court found that Immaculate saw mud structures on the land and learned from neighbours that they belonged to Barasa, and that the seller Aggrey had himself acknowledged the structures since about 1993. Barasa's occupation, uninterrupted for some 17 years, constituted an overriding interest under section 30(f) and (g) of the repealed Registered Land Act, attaching to the land and unaffected by the change of ownership. Having notice of the occupation, Immaculate was not a bona fide purchaser without notice. The court reversed the High Court, set aside the eviction order and awarded costs to Barasa.

Key legal issues

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01

Whether Barasa was in occupation of the suit property at the time Immaculate purchased it in 2010

Holding

Yes. Immaculate found mud structures on the land, was told by neighbours they belonged to Barasa, and Aggrey himself admitted the structures existed since about 1993 and had reported the trespass to the chief. Barasa was therefore in occupation at the time of the purchase.

Reasoning

The court weighed the testimony of Immaculate, Aggrey and Barasa. Immaculate admitted seeing mud houses and learning from neighbours that Barasa occupied them. Aggrey conceded that from about 1993 a structure stood on the land, which he reported to the chief, and that the same hut remained when he sold in 2010. The court held these facts established occupation.

p. 4
02

Whether Barasa's occupation created an overriding interest binding Immaculate's title

Holding

Yes. Barasa's occupation had remained uninterrupted for at least 17 years (1993–2010), creating an overriding interest under section 30 of the repealed Registered Land Act which attached to the land and was unaffected by the change of ownership.

Reasoning

Relying on section 30(f) and (g) of the Registered Land Act and its own precedents (Obiero vs Opiyo; Janet Ngendo Kamau), the court held that possession and occupation, and rights in process of acquisition under the Limitation of Actions Act, are overriding interests that go with the land, not the registered proprietor. Even without the 1987 purchase date, 17 years' occupation sufficed.

p. 5
03

Whether Immaculate was a bona fide purchaser for value without notice

Holding

No. Having found the mud structures on the land and been informed by neighbours that Barasa occupied them, she had notice of his occupation and could not rely on the bona fide purchaser defence.

Reasoning

The High Court had found Immaculate a bona fide purchaser without notice and found Barasa absent from the land. The Court of Appeal, on re-evaluation, found she expressly acknowledged the mud houses and Barasa's presence as a squatter before and after purchase, destroying any claim of absence of notice.

p. 5
04

Whether the High Court was entitled to order Barasa's eviction

Holding

No. Because an overriding interest existed, the learned judge misconstrued the evidence in finding no interest in the suit property, and the eviction order could not stand.

Reasoning

Having found occupation creating an overriding interest, the court held the trial judge erred in concluding that no interest accrued to Barasa and in ordering eviction; the decision was thus liable to be interfered with on appeal.

p. 5

Legal principles established

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  • Possession and occupation of registered land constitute an overriding interest under section 30(g) of the Registered Land Act, not required to be noted on the register, to which a proprietor's title is subject.
  • Rights in the process of being acquired under the Limitation of Actions Act are overriding interests under section 30(f) that attach to the land itself; a change of registered ownership does not extinguish or affect them.
  • A purchaser of registered land who has actual or constructive notice of a person in occupation cannot qualify as a bona fide purchaser without notice so as to defeat that occupier's overriding interest.
  • Duty of a first appellate court: to re-examine the evidence afresh and draw its own conclusions, while being slow to overturn the trial court's findings on credibility of witnesses it did not see or hear.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the High Court ordering the eviction of Barasa from the suit property set aside
  3. 3.Costs of the appeal and suit to the appellant
On appeal from
High Court of Kenya at Bungoma
HC Land Case No. 93 of 2011
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal's statutory appellate powers (appeal as of right from the High Court in a civil suit)

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, "Wensley Barasa v Immaculate Awino Abongo", Case Analysis (2017). Civil Appeal No. 115 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/307/eng@2017-09-28

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