Tobias Odhiambo Abach v Elijah O. L. Opar [2018] KEELC 32 (KLR)
The bottom line
#A Migori court ruled that cultivating land openly for over 12 years gives you ownership rights, even if the landowner changed.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired prescriptive rights of adverse possession over the suit land after more than 12 years of open, peaceful and uninterrupted possession
Yes. The court found that the plaintiff had been in open, peaceful and uninterrupted possession of the suit land since at least 2002 (and claimed cultivation since 1990), thereby acquiring adverse possession rights entitling him to registration under Sections 7 and 38 of the Limitation of Actions Act.
The court accepted the plaintiff's evidence that he had cultivated the land since 1990 without interference, holding that possession can take the form of cultivation. The defendant's own testimony that the plaintiff was tilling the land and that the defendant did not reside on it supported continuous occupation. The defendant obtained title in 2010, but a change of ownership cannot defeat a subsisting adverse possession claim. The claim was proved on a balance of probabilities.
Whether the consent of the Land Control Board is required for transfer of rights acquired by adverse possession
No. Consent of the Land Control Board is not a requirement for rights acquired by adverse possession under Section 7 of the Limitation of Actions Act.
Relying on the decision in Mwangi and Another v Mwangi (1986) KLR 328, the court held that Land Control Board consent is unnecessary for vesting of rights by adverse possession, and applied that holding to the instant matter.
Legal principles established
#- Possession for purposes of adverse possession can take different forms, including fencing and cultivation of the suit land.
- A mere change of ownership of land which is the subject matter of a claim to title under adverse possession cannot, per se, defeat the claim.
- Land Control Board consent is not required for rights acquired by adverse possession under Section 7 of the Limitation of Actions Act.
- An action to recover land may not be brought after the end of twelve years from the date the right of action accrued (Section 7, Law of Limitations Act, Cap 22).
Court orders
#- 1.Judgment entered for the plaintiff against the defendant in terms of orders (1), (2) and (3) sought in the originating summons dated 17th March 2010, namely: extinguishment/modification of the easement burdening WEST KASIPUL/KODERA KABARACH/255 without compensation; declaration of the plaintiff's rights of possession, prescription and occupation over approximately 2.2ha within the suit land; and declaration that the plaintiff is entitled to be registered as proprietor of the 2.2ha under Section 38 of the Limitation of Actions Act in place of the defendant
- 2.The costs of the suit shall be borne by the defendant
- Jurisdiction invoked
- Order XXXVI Rule 3D of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act; formerly partly heard at Kisii Environment and Land Court and transferred to this court on 22/3/2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tobias Odhiambo Abach v Elijah O. L. Opar [2018] KEELC 32 (KLR)", Case Analysis (2018). Originating Summons dated 17th March 2010 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/32/eng@2018-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.