Livingstone Jason Mukoya Ogongo & 3 others v George William Okello & 3 others [2017] KEELC 1786 (KLR)
The bottom line
#A Kenyan court dismissed a family's claim to own land through long occupation, because the 12-year clock only started once the true ownership was settled.
What this practically means
#Executive summary
#Key legal issues
#Whether time for adverse possession ran against the Defendants' predecessors during the long-running ownership litigation (1965-1999)
No - time could not run because ownership was uncertain until survey in 1997 and registration in 2000
The court found there was a protracted dispute over ownership of the suit land from 1965, with succession proceedings needed to replace the original disputing owners. Until the dispute was determined and the Defendants registered, no one could tell who owned which part, so the Plaintiffs' possession could not be adverse against a certain titled owner. The 12-year minimum period therefore had not elapsed by the time the suit was filed in 2005.
Whether certainty of the physical location of the portions claimed was established
The portions claimed by the Plaintiffs were certain, but the portions the Defendants would ultimately own were not clear until the 1997 survey
The court articulated certainty of the physical location of the land claimed as a requirement of adverse possession. While the Plaintiffs' portions were demarcated (sisal boundaries), the Defendants' eventual portions could not be ascertained until the 1997 survey and 2000 registration, defeating the claim.
Whether the Plaintiffs' occupation was adverse or permissive
The court noted evidence that the 1st plaintiff's occupation was with permission and that he shifted portions during the 1997 sharing
The Defendants testified that the 1st plaintiff occupied with permission of the Angwangi family and moved to another portion during the 1997 subdivision without complaint, undermining the claim of open, unpermitted possession. The court found persuasive evidence of the 1st plaintiff shifting base between portions.
Legal principles established
#- Adverse possession requires open, peaceful and unpermitted possession as of right (nec vi, nec clam, nec precario) persisting for at least 12 years, against a person with good title
- Time for adverse possession does not run while ownership of the land is undetermined by pending litigation
- A further requirement of adverse possession is certainty of the physical location of the land claimed, both by the possessor and as against the eventual owner
Court orders
#- 1.The Plaintiffs' entire claim is dismissed
- 2.Each side to bear its own costs
- Jurisdiction invoked
- Originating Summons under the law of adverse possession (Limitation of Actions Act), original civil jurisdiction of the High Court, Environment and Land Division
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Livingstone Jason Mukoya Ogongo & 3 others v George William Okello & 3 others [2017] KEELC 1786 (KLR)", Case Analysis (2017). ELC No. 138 of 2013 (Formerly HCC No. 26/05 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1786/eng@2017-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.