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Case Brief · caselaw.co.ke
ELCPartially AllowedELC No. 113 of 2014

Benjamin Ekisa Emukule v Faustine Okwara Itangasa & another [2017] KEELC 913 (KLR)

High Court of Kenya
29 November 2017
1,765 words in judgment
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The bottom line

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A Busia court ruled that a buyer who occupied and used his land openly for over 12 years can legally own it, even without a transfer.

What this practically means

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Executive summary

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The plaintiff, Benjamin Ekisa Emukule, filed an originating summons dated 1/12/2011 claiming land parcel No. L.R. South Teso/Amukura/3226 by way of adverse possession against the two defendants. The parcel arose from the sub-division of the original parcel South Teso/Amukura/1003; the plaintiff's claim to the companion parcel 3225 was withdrawn on 25/9/2017. The plaintiff's case was that in 1991 he purchased three acres from the 1st defendant (two acres at Kshs.17,000 and one acre at Kshs.10,000, fully paid), took vacant and marked possession, and had continuously, openly and peacefully used the land since, notwithstanding the 1st defendant's subsequent sub-division and registration of parcel 3226 in the name of the 2nd defendant. The defendants entered appearance through counsel but filed nothing and did not attend the hearing; the court was satisfied they were duly served and proceeded undefended. The plaintiff testified with one witness and produced sale agreements, a Land Control Board consent, green cards and a part-payment agreement. Applying Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22) and the principles in Peter Mbiri Michuki, Wambugu v Njuguna and Ngati Farmers Co-operative Society Ltd, the court found discontinuance of possession by the defendants and continuous, open and uninterrupted possession by the plaintiff since 1991, exceeding twelve years. All issues were answered in the plaintiff's favour and the orders prayed for were granted, but confined to parcel 3226. The defendants were ordered to pay costs.

Key legal issues

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01

Whether the defendants were dispossessed or discontinued their possession of the land claimed

Holding

Yes - the defendants discontinued possession; they do not use parcel 3226, which the plaintiff has possessed and used since 1991

Reasoning

The plaintiff's uncontroverted evidence showed he went into possession in 1991 upon purchase, took vacant possession, marked the land on the ground and has continuously used it to date. The defendants neither responded to the suit nor attended the hearing. The court found this established discontinuance of possession by the defendants, one of the two alternative routes recognised in Wambugu v Njuguna, and that the plaintiff's possession became adverse when payment was completed but the seller refused to transfer.

p. 4
02

Whether the defendants' title was extinguished after twelve years of adverse possession

Holding

Yes - the defendants' title to the portion occupied by the plaintiff became liable to extinguishment after expiry of 12 years

Reasoning

Relying on Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22), the court held that after twelve years from accrual of the right of action no action may be brought to recover land and the registered proprietor's title is extinguished. Section 38 enjoins court action by a person claiming title as an adverse possessor. The plaintiff entered possession in 1991 and had thus exceeded twelve years, so his title by adverse possession vested and the defendants' title was extinguished.

p. 3

Legal principles established

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  • For a claim of adverse possession to succeed, the possessor must demonstrate possession that is adequate, continuous, exclusive, open, hostile and notorious
  • Adverse possession requires possession as of right - nec vi, nec clam, nec precario - and the possession must be continuous and not broken for any temporary purposes
  • Mere change of ownership of land occupied by a person in adverse possession does not interrupt that person's right of adverse possession
  • Until the contrary is proved, possession in law follows the right to possess; a claimant must prove either dispossession or discontinuance of possession by the registered owner

Court orders

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  1. 1.That the respondents' right over land parcel number L.R. SOUTH TESO/AMUKURA/3226 got extinguished by adverse possession upon expiry of 12 years from the date the applicant came into possession
  2. 2.That the respondents be perpetually barred from taking or using the said portion of land
  3. 3.That the respondents do execute all the relevant documents to facilitate transfer of L.R. No. SOUTH TESO/AMUKURA/3226 into the names of the applicant and that in default the deputy registrar do execute them on their behalf in favour of the applicant
  4. 4.That title to the portion of land L.R. No. SOUTH TESO/AMUKURA/3226 registered in the applicant's name is valid
  5. 5.That the defendants pay costs of the suit
Jurisdiction invoked
Original jurisdiction of the High Court under Section 38 of the Limitation of Actions Act (Cap 22) - application for an order that the applicant be registered as proprietor by adverse possession

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, "Benjamin Ekisa Emukule v Faustine Okwara Itangasa & another [2017] KEELC 913 (KLR)", Case Analysis (2017). ELC No. 113 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/913/eng@2017-11-29

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