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ELCAllowedCivil Suit No. 570 of 2015 (formerly Civil Suit No. 18 of 2012 (OS))· [2017] KEELC 1082 (KLR)

Siprosa Anyango Orwa & another v Nicholas Otieno Hongo [2017] KEELC 1082 (KLR)

Environment and Land Court
24 October 2017
JOJ.O. Olola
2,905 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 Applicants, by Originating Summons dated 31st January 2012, sought a declaration that they had acquired title to 0.20 Ha of land parcel Kisumu/Konya/4488 by adverse possession and an order directing the Land Registrar to transfer that portion to them. The 2nd Applicant, born on the ancestral land, married the 1st Applicant in 1993 and they established their matrimonial home on the parcel, which was registered in the Respondent's name on 27th September 1996. The Respondent, served by substituted service through a Daily Nation advertisement, neither entered appearance nor filed a defence, and the 1st Applicant's uncontroverted evidence stood unchallenged; the 2nd Applicant died during the pendency of the suit. Before determining the adverse possession claim, the court considered the prior proceedings before the Kisumu East District Land Disputes Tribunal, whose award had been adopted as an order of the Chief Magistrate's Court on 24th November 2011. The court held that the adoption was a nullity because the Environment and Land Court Act, 2011 had repealed the Land Disputes Tribunal Act on 30th August 2011 with no saving provision, so the Applicants were not bound by the tribunal's dismissal of their claim over parcel 4488. On the merits, applying the Limitation of Actions Act and the nec vi, nec clam, nec precario standard, the court found 16 years of open, continuous occupation had extinguished the Respondent's rights. Judgment was entered for the Applicants with a declaration of adverse possession, an order for transfer of the 0.20 Ha portion, and costs against the Respondent.

Key legal issues

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01

Effect of the adoption of the Land Disputes Tribunal award after repeal of the Land Disputes Tribunal Act

Holding

The adoption of the tribunal award on 24th November 2011 was a nullity because the Land Disputes Tribunal Act had been repealed on 30th August 2011 with no saving provision, so the Applicants were not bound by it.

Reasoning

The tribunal's award was made on 21st April 2011, before the Environment and Land Court Act came into effect on 30th August 2011. Section 31 of that Act repealed the Land Disputes Tribunal Act with no saving provision for pending proceedings or adoptions. When the Senior Resident Magistrate adopted the award on 24th November 2011, the jurisdiction under Sections 7 and 8 of the repealed Act had ceased to exist. Proceedings flowing from that adoption were therefore null and void, and the Applicants could not be bound by them.

p. 4
02

Whether the Applicants acquired title to 0.20 Ha of Kisumu/Konya/4488 by adverse possession

Holding

Yes; the Respondent's rights over the claimed portion were extinguished by over 12 years of open, continuous occupation by the Applicants.

Reasoning

The Respondent was registered as owner on 27th September 1996. The Applicants established their matrimonial home in 1993 and continuously occupied and utilized 0.20 Ha of the parcel without interruption. Their occupation was open and not secret, and tribunal proceedings confirmed the Respondent was aware of their presence. Between 1996 and 2012, 16 years elapsed, exceeding the 12-year limitation period. The Respondent, served by advertisement, entered no appearance and the evidence was uncontroverted.

p. 5

Legal principles established

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  • Adverse possession requires possession that is neither by force, stealth, licence nor permission, and must be adequate in continuity, publicity and extent
  • A court cannot exercise jurisdiction under a repealed statute; proceedings under a repealed Act after repeal are a nullity
  • A party is not bound by an order that is a nullity
  • An adverse possession claim must be supported by a certified extract or copy of the title to the suit land

Court orders

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  1. 1.A declaration that the Applicants have acquired title to a portion of land Parcel No. Kisumu/Konya/4488 measuring approximately 0.20 Ha by way of adverse possession
  2. 2.An order directing the relevant Land Registrar Kisumu to transfer the said 0.20 Ha portion of Kisumu/Konya/4488 to the Applicants
  3. 3.Costs of the suit to be borne by the Respondent

Authorities

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Legislation

  • Land Disputes Tribunal ActSections 3, 7(1), 7(2), 8(1)
  • Environment and Land Court Act, 2011Section 31
  • Limitation of Actions Act (Cap 22)Sections 7, 13(1), 37, 38
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (1)

  • Teresa Wachuka Gathira –vs- Joseph Mwangi Gachira
    Civil Appeal No. 328 of 2003
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act (implied); claim brought under Section 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rule 7 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Siprosa Anyango Orwa & another v Nicholas Otieno Hongo [2017] KEELC 1082 (KLR)", Case Analysis (2017). Civil Suit No. 570 of 2015 (formerly Civil Suit No. 18 of 2012 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1082/eng@2017-10-24

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