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ELCDismissedNot stated in the judgment as provided· [2016] KEELC 595 (KLR)

Maina Wahome v Esther Cherop Murey & 6 others [2016] KEELC 595 (KLR)

Environment and Land Court
15 September 2016
AOAntony Ombwayo
2,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of L.R. Uasin Gishu/Kondoo/560 (2.6 ha) by transmission on 28.3.2012 following succession to his mother Annah Wanjiku Nduati, sued seven defendants for eviction, a permanent injunction and mesne profits, alleging they invaded and subdivided the land in 2012 claiming purchase from third parties. The defendants filed a defence and counterclaim asserting occupation since 1992, that the plaintiff's title was vitiated by fraud and the annulled succession grant, that recovery was time-barred under section 7 of the Limitation of Actions Act, and that issues were res judicata following a Land Disputes Tribunal award. They counterclaimed for cancellation of the title and registration as proprietors by adverse possession. At hearing, the plaintiff admitted his sister had sold portions without title; defence evidence included the testimony of a High Court executive officer confirming the grant issued and confirmed in the succession cause was revoked on 24.6.2013 for fraud and concealment. The court framed two issues: lawful acquisition of title and adverse possession. It held the register entries of 28.3.2012 were nullities since the deceased could not hold property in 2012 and the plaintiff failed to demonstrate lawful acquisition. On adverse possession, it held possession could not run against the Settlement Fund Trustees, a government agency, nor had 12 years elapsed against the plaintiff's 2012 registration. Both the suit and the counterclaim were dismissed with costs on 15 September 2016.

Key legal issues

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01

Whether the plaintiff's title was lawfully acquired

Holding

The plaintiff's title was not lawfully acquired; the register entries of 28.3.2012 were null and void and ought to be rectified

Reasoning

The succession grant and its confirmation were annulled on 24.6.2013 for fraud and concealment of material facts, so all acts flowing from them were nullities. The transfer to Annah Wanjiku Nduati on 28.3.2012 was itself a nullity as she died in 2000 and could not hold property; the Settlement Fund Trustees could not lawfully transfer land to a deceased person, and the plaintiff did not demonstrate how the property passed to him.

p. 4
02

Whether the defendants are in adverse possession

Holding

No; the defendants failed to establish adverse possession

Reasoning

Adverse possession requires a registered owner against whom time can run. The legal registered proprietor at the time the defendants took possession was the Settlement Fund Trustees, a government agency whose interest is not extinguishable under the Limitation of Actions Act. Against the plaintiff (registered 2012), 12 years had not elapsed at filing. Further, the defendants could not allege the title was fraudulent while claiming adverse possession.

p. 4

Legal principles established

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  • Adverse possession can only apply where there is a registered owner, and does not run against a government agency such as the Settlement Fund Trustees
  • A claimant cannot simultaneously allege the registered proprietor's title is fraudulent and claim adverse possession of the same land
  • The burden lies on a plaintiff claiming protection of property to prove lawful acquisition on a balance of probabilities
  • Acts flowing from a nullified grant and confirmation are nullities

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs
  2. 2.The defendants' counterclaim is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Actsection 7
Jurisdiction invoked
Original jurisdiction over land disputes (Environment and Land Court); no specific provision cited

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, "Maina Wahome v Esther Cherop Murey & 6 others [2016] KEELC 595 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/595/eng@2016-09-15

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