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ELCAllowedOriginating Summons dated 13th February 2013· [2017] KEELC 1630 (KLR)

Yunuke Moraa Ndege v Sagwe Akuma [2017] KEELC 1630 (KLR)

High Court of Kenya
6 October 2017
JMJ. M. Mutungi
2,541 words in judgment
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The bottom line

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A Kisii court gave a widow the 1.5 acres her family farmed openly for decades, ruling the registered owner's title had simply run out.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of her late husband Ndege Nyamora, brought an originating summons under Order 37 Rules 7 and 8 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act claiming 1.5 hectares of land parcel West Mugirango/Bonyamatuta/527 registered in the defendant's name by adverse possession. She averred that a 1963 decision of the DM's court at Gesima delineated the boundaries between her late husband's parcel 526 and the defendant's parcel 527, but during land adjudication a 1.5-hectare portion was erroneously annexed to parcel 527, which her family has openly, peacefully and continuously occupied and cultivated since 1963, building permanent houses and planting tea. The hearing proceeded ex parte on 11th July 2017 after service; PW1, the plaintiff's son under a registered power of attorney, adopted her affidavit. The defendant's replying affidavit admitted the plaintiff's occupation of the 1.5 hectares. The court framed three issues: possession, whether it was adverse, and entitlement to registration. It found the adjudication error inadvertent, occasioned by the defendant's neglect, and held that the plaintiff's family had been in adverse possession since at least registration of parcel 527 on 13th July 1976, extinguishing the defendant's title to the portion on 13th July 1988. Following Githu v Ndeete, fencing and cultivation established possession of an identifiable portion. Judgment was entered for the plaintiff: a declaration of adverse possession, an order registering her as proprietor of the 1.5 hectares, an order for subdivision and transfer, with each party bearing their own costs.

Key legal issues

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01

Whether the applicant's possession of the 1.5 hectares was continuous, uninterrupted and adverse

Holding

Yes - the applicant's family had occupied the portion openly, peacefully and continuously since 1963, and the defendant's title to it was extinguished on 13th July 1988, twelve years after his registration on 13th July 1976.

Reasoning

The court found uncontroverted and credible evidence that the applicant's family occupied the 1.5 hectares with permanent houses and tea planted since 1963, the portion being delineated by a footpath with fencing and trees. The defendant admitted the occupation. Since registration as owner on 13th July 1976, the defendant took no steps to recover possession within 12 years, so his title was extinguished on 13th July 1988.

p. 4
02

Whether the inclusion of the 1.5 hectares in the defendant's parcel during land adjudication was a mistake

Holding

Yes - the adjudication failed to give effect to the 1963 DM's court decision delineating the boundaries, and the defendant contributed to the error by failing to guide the surveyors.

Reasoning

The court found the adjudication in the 1970s did not take account of the DM's court Gesima decision in case No. 60 of 1963 which had removed the defendant from the applicant's husband's land. The defendant admitted the applicant's husband was absent during the adjudication survey, and it was the defendant's duty to guide surveyors to delineate the correct boundary; his acts or neglect occasioned the mistake in the Registry Index Map used to process the titles.

p. 3

Legal principles established

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  • A registered owner who takes no action to recover possession within 12 years of registration has his title extinguished by effluxion of time.
  • Fencing off or cultivation of an identifiable portion of land is sufficient to prove adverse possession of that portion.

Court orders

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  1. 1.Declaration that the applicant has adversely possessed a portion of 1.5hectares of the respondent's land parcel No. West Mugirango/Bonyamatuta/527 for over 27 years and the respondent's title to that portion is extinguished in favour of the plaintiff
  2. 2.Order that the applicant be registered as proprietor of the portion of 1.5hectares of land parcel No. West Mugirango/Bonyamatuta/527 in place of the respondent
  3. 3.Order and direction that land parcel No. West Mugirango/Bonyamatuta/527 be subdivided and the portion of 1.5hectares occupied by the applicant be transferred to the applicant, Yunuke Moraa Ndege
  4. 4.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rules 7 and 8
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 38
  • Land Registration Act, 2012Section 80(1) and 80(2)

Cases cited (2)

  • Githu –vs- Ndeete
    [1984] KLR 777
  • Gatimu Kinguru –vs- Muya Gathangi
    High Court Civil Case No. 176 of 1973
Jurisdiction invoked
Order 37 Rules 7 and 8 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, Cap 22 Laws of Kenya

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, "Yunuke Moraa Ndege v Sagwe Akuma [2017] KEELC 1630 (KLR)", Case Analysis (2017). Originating Summons dated 13th February 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1630/eng@2017-10-06

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