Benjamin Ekisa Emukule v Faustine Okwara Itangasa & another [2017] KEELC 913 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendants were dispossessed or discontinued their possession of the land claimed
Yes - the defendants discontinued possession; they do not use parcel 3226, which the plaintiff has possessed and used since 1991
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.
Whether the defendants' title was extinguished after twelve years of adverse possession
Yes - the defendants' title to the portion occupied by the plaintiff became liable to extinguishment after expiry of 12 years
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.
Legal principles established
#- 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
#- 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.That the respondents be perpetually barred from taking or using the said portion of land
- 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.That title to the portion of land L.R. No. SOUTH TESO/AMUKURA/3226 registered in the applicant's name is valid
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.