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ELCPartially AllowedCase No 1151 of 2016· [2017] KEELC 1568 (KLR)

Charles Odongo Ngani v Milka Akinyi Otieno [2017] KEELC 1568 (KLR)

Environment and Land Court (High Court)
6 October 2017
JMJ. M. Mutungi
3,416 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kisii court gave a man the 1 acre he had openly occupied and farmed for over 12 years, even though someone else held the title deed.

What this practically means

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Executive summary

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The plaintiff claimed by originating summons dated 16th December 2011 that he had acquired 1 acre out of LR No. Kamagambo/Koluoch/1000 by adverse possession. He averred that his late father, Zakayo Ngani, bought the portion from Ongoma Ochuka (the defendant's father-in-law) under an oral agreement in 1983/1984, took possession, and that the plaintiff continued in uninterrupted occupation, building a permanent house in the 1990s. The defendant denied any sale, asserted she was duly registered as proprietor on 20th September 2011 following due process after Ongoma Ochuka's death, and contended the plaintiff entered the land in 2010 and was a trespasser; she sought his removal and the lifting of his restriction. The court, directions having converted the originating summons into a plaint, heard viva voce evidence partly before Okongo, J. and partly before Mutungi, J. The court accepted the evidence of the plaintiff and PW2 of entry into possession in 1987 and construction of a permanent house in the 1990s during the registered owner's lifetime, disbelieving the defendant's account. It held the 2003 written-form amendment to Section 3(3) of the Law of Contract Act did not apply to the pre-2003 transaction, and that the oral agreement merely explained entry; the claim rested on adverse possession. Applying Jandu v Kirpal, the court found the plaintiff's possession actual, open, hostile and continuous for over 12 years, extinguishing Ongoma Ochuka's title before the 2010/2011 transfer. Judgment was entered for the plaintiff with a declaration of entitlement to registration, an order for subdivision and transfer of the 1 acre, authority for the Deputy Registrar to execute documents in default, and each party bearing own costs.

Key legal issues

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01

Whether the plaintiff was in open, continuous and adverse possession of the 1 acre for over 12 years

Holding

The plaintiff proved on a balance of probabilities that he was an adverse possessor of 1 acre since at least 1990, and Ongoma Ochuka's title to that portion was extinguished before the transfer to the defendant

Reasoning

The court accepted evidence of the plaintiff and PW2 that entry was in 1987 and the plaintiff built a permanent house in the 1990s during Ongoma Ochuka's lifetime, an act of adversity. The defendant's claim that the plaintiff entered in 2010 was disbelieved. Ongoma Ochuka took no action to recover the land before his death on 30th June 2010, so his title had extinguished after 12 years from at least 1990.

p. 6
02

Whether the unwritten 1983/1984 sale agreement could found the action given Section 3(3) of the Law of Contract Act

Holding

The written-form requirement introduced by the 2003 amendment did not apply to the pre-2003 transaction, and the oral agreement was relevant only to explain how the plaintiff gained entry, not as the basis of the suit

Reasoning

The claim is predicated on adverse possession, not enforcement of the contract. The pre-amendment proviso to Section 3(3) permitted suits on unwritten agreements where a party had taken possession in part performance. The lack of Land Control Board consent did not defeat the use of the transaction as evidence of the manner of entry into possession.

p. 4
03

Whether the defendant's registration as owner on 20th September 2011 affected accrued adverse possession rights

Holding

Registration of the defendant did not revive the extinguished title; the seller's title to the occupied portion was already extinguished at the time of transfer

Reasoning

Ongoma Ochuka's title to the portion occupied by the plaintiff became extinguished after 12 years at least from 1990, so at the time of the transfer to the defendant in 2010 he had no title to the 1 acre to pass. The defendant took subject to the plaintiff's accrued rights.

p. 5

Legal principles established

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  • To prove title by adverse possession, possession must be actual, visible, hostile, open and notorious
  • The adverse possessor must have dispossessed the legal owner for a continuous and uninterrupted period of 12 years for the owner's title to be extinguished
  • The amendment to Section 3(3) of the Law of Contract Act effective 1st June 2003 does not apply to transactions predating its effective date

Court orders

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  1. 1.A declaration that the plaintiff, Charles Odongo Ngani, has become entitled to be registered as owner of a portion of 1 acre out of land parcel Kamagambo/Koluoch/1000 by reason of being in adverse possession for a period exceeding 12 years
  2. 2.That the portion of 1 acre in occupation and possession by the plaintiff be hived off from land parcel Kamagambo/Koluoch/1000 and be transferred to the plaintiff
  3. 3.The defendant to execute all necessary and appropriate documents to facilitate the subdivision and transfer of the 1 acre portion to the plaintiff, failing which the Deputy Registrar of the court is authorized to execute the necessary documents
  4. 4.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActCap 22 Laws of Kenya
  • Law of Contract ActSection 3(3), Cap 23 Laws of Kenya
  • Land Control ActSection 6(1)

Cases cited (3)

  • Jandu –vs- Kirpal
    [1975] E.A 225
  • Kenya Tea Development Authority –vs- Jackson Gichuhi Karanja & Another
    [2006] eKLR
  • Turubat –vs- Verkatrao
    [1920] 27 BSM 43
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act, Cap 22 Laws of Kenya (claim for declaration of title by adverse possession)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Charles Odongo Ngani v Milka Akinyi Otieno [2017] KEELC 1568 (KLR)", Case Analysis (2017). Case No 1151 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1568/eng@2017-10-06

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