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ELCPartially AllowedELC NO. 400 OF 2014· [2017] KEELC 825 (KLR)

Florence Makungu Harun & another v Stanley Mafoli Musindi & another [2017] KEELC 825 (KLR)

Environment and Land Court
15 November 2017
NMN.A. Matheka
1,583 words in judgment
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The bottom line

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A Kakamega court awarded land to a family that paid for it in 1976 and lived on it for over 12 years without transfer.

What this practically means

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Executive summary

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The plaintiffs brought an originating summons by adverse possession claiming the whole of L.P. No. ISUKHA/LUBAO/569. They testified that in 1976 the 1st plaintiff's deceased husband, Haron Imbayi, entered a land sale agreement with the late Jacob Mukhoyani, paid the Ksh. 8,000/= purchase price in full, and took possession, but the seller relocated and never executed transfer documents. The plaintiffs have occupied the land openly and uninterruptedly since 1976, with their homestead on it, while the defendants later acquired title from the same seller and threatened them with eviction. PW2 and PW3 corroborated PW1's evidence. The court applied the principles in Wambugu v Njuguna as adopted in Gerald Muriithi v Wamugunda Muriuki, including that possession becomes adverse after payment of the last installment of the purchase price and title vests after 12 years' occupation. It found as a fact that the land was registered in Jacob Mukhoyani's name as at 5th January 2014 with a caution in favour of Haron Imbayi, that the plaintiffs had occupied the land openly and uninterruptedly since 1976, and that the defendants, though served, did not attend court and their defence was a mere denial. The court held the plaintiffs had established their case on a balance of probabilities and ordered the land transferred to and registered in the applicants' names as sole absolute owners, authorised the Deputy Registrar to sign transfer documents in default, and awarded the plaintiffs costs. Delivered at Kakamega on 15th November 2017 by N.A. Matheka J.

Key legal issues

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01

Whether adverse possession was established

Holding

Yes - the plaintiffs proved open and uninterrupted occupation since 1976 following full payment of the purchase price, exceeding the statutory 12-year period, on a balance of probabilities

Reasoning

The court applied the principles in Wambugu v Njuguna via Gerald Muriithi v Wamugunda Muriuki, holding that possession becomes adverse after payment of the last installment of the purchase price. The plaintiffs' deceased husband bought the land in 1976, paid Ksh. 8,000/= in full, and occupied it openly and uninterruptedly. The defendants were served but did not attend court; their defence was a mere denial with no evidence to the contrary. Occupation was open and uninterrupted until the first court case in 1997, well beyond 12 years.

p. 3

Legal principles established

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  • Where a claimant pleads right to land under an agreement and alternatively seeks adverse possession, possession becomes adverse after payment of the last installment of the purchase price, and title is acquired after 12 years' occupation

Court orders

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  1. 1.That the whole original L.P. No. ISUKHA/LUBAO/569 (later subdivided to other pieces), be transferred to and registered in the applicants names as sole absolute owners.
  2. 2.The defendants/respondents be directed to sign all transfer documents in default the Deputy Registrar of this Hon. Court be authorised to do so.
  3. 3.The defendants/respondents do pay costs of this suit.

Authorities

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Legislation

  • Limitation of Actions Actprovisions on adverse possession

Cases cited (2)

  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
Jurisdiction invoked
Articles 162(2)(b) and 165(2) of the Constitution (Environment and Land Court jurisdiction over disputes relating to land) - inferred; the judgment does not expressly cite a jurisdictional provision

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, "Florence Makungu Harun & another v Stanley Mafoli Musindi & another [2017] KEELC 825 (KLR)", Case Analysis (2017). ELC NO. 400 OF 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/825/eng@2017-11-15

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