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ELCAllowedOriginating Summons dated 6th December 2013 (Oyugis/Migori)· [2018] KEELC 138 (KLR)

Kennedy Omondi Alando v Enock Ogweno Ochola [2018] KEELC 138 (KLR)

High Court of Kenya
19 December 2018
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court handed a family land to a man who had lived on and farmed it for over 30 years, wiping out the registered owner's title.

What this practically means

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Executive summary

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The plaintiff sued by Originating Summons dated 6th December 2013 under Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act (Cap 22), seeking a declaration that the defendant's right to recover LR No. East Kasipul/Kojwach Kamoro/433 (about 2.2 hectares) was barred and his title extinguished, an order registering the plaintiff as proprietor, an injunction against interference, execution of transfer instruments in default, and costs. The plaintiff (PW1), born 15/11/1979, testified he was born and raised on the land, had established a homestead there, and had occupied it openly, peacefully and continuously for over 30 years; his evidence was corroborated by PW2 (a neighbour) and PW3 (the area Chief), and by photographs of his house, pit latrine and farm. The defendant acquired title by transmission from the estate of deceased 1 pursuant to succession proceedings in Oyugis PMCC Succession Cause No. 125 of 2012, but did not occupy the land; he contended the plaintiff lived elsewhere and that the structures were erected by a third party, Bethwel Waweru Ogwayo. Relying on Wilson Kazungu Katana, the court found the three elements of adverse possession satisfied: the land was registered in the defendant's name, the plaintiff was in open and exclusive possession adverse to his title, and occupation exceeded twelve years, uninterrupted; the status quo order of 28/10/2015 did not stop time running. The defendant's title was extinguished. Judgment was entered for the plaintiff in terms of issues 1 to 5 of the Originating Summons, with costs against the defendant.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

Yes. The land was registered in the defendant's name, the plaintiff was in open, continuous and exclusive possession for over 12 years (indeed since 1979), and the defendant neither occupied nor possessed the land, hence was dispossessed; the defendant's title was extinguished.

Reasoning

It was common ground the land was registered in the defendant's name through transmission from the estate of deceased 1. The plaintiff's possession was corroborated by his neighbour (PW2) and the area Chief (PW3), with photographs (PExhibits 7(a)-(e)) showing his homestead, pit latrine and farm. The defendant did not occupy the land. Possession may take the form of fencing or cultivation. No suit was filed to stop time running; the status quo order of 28/10/2015 merely preserved the land and did not interrupt limitation. Possession since 1979 far exceeds the 12-year statutory period, so the defendant's title stood extinguished and the plaintiff proved his claim on a balance of probability.

p. 3

Legal principles established

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  • The elements of adverse possession are that the land be registered in a name other than the applicant's, the applicant be in open and exclusive possession adverse to the owner's title, and the occupation exceed twelve years having dispossessed the owner or discontinued his possession.
  • Possession for purposes of adverse possession can take different forms such as fencing or cultivating the land in dispute.
  • An order for maintenance of status quo to preserve land does not stop time running under Section 38 of the Limitation of Actions Act.

Court orders

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  1. 1.A declaration that the defendant's right to recover the suit property is barred under the Limitation of Actions Act (Cap 22) and his title thereto extinguished
  2. 2.An order that the plaintiff be registered as proprietor of the whole of the suit property in place of the defendant
  3. 3.An order restraining the defendant, his agents, servants and/or employees from interfering with the plaintiff's peaceful possession and occupation of the suit property
  4. 4.The Deputy Registrar and/or Executive Officer of the Honourable High Court to execute the Transfer Instruments and all attendant documents to facilitate transfer and registration of the suit property in favour of the plaintiff in default by the defendant
  5. 5.Costs of the Originating Summons to be borne by the defendant

Authorities

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Legislation

  • Limitation of Actions ActCap 22, Sections 38 and 37
  • Civil Procedure Rules, 2010Order 37 Rules 7 and 14
  • Registered Land Act (repealed)Cap 300, Section 30 (referred to in Karuntimi Raiji v M'Makinya M'itunga)

Cases cited (11)

  • Githu =vs= Ndeete
    1984 KLR 778
  • Harrison Ngige Kaara =vs= Shadrack Njanja Kaara
    Nairobi Civil Appeal No. 79 of 1996
  • Virginia Wanjiku Mwangi =vs= David Mwangi, Johnthan Kamus
    (2013) eKLR
  • Peter Gichuki Wanjohi =vs= Julia Mumbi Mutari
    (2017) eKLR
  • Karuntimi Raiji =vs= M'Makinya M'itunga
    (2013) eKLR
  • Galaxy Paints Ltd =vs= Falcon Grounds Ltd
    (2000) 2EA 385
  • Titus Ong'anga Nyachieo =vs= Martin Okioma Nyauma & 3 Others
    (2017) eKLR
  • Kimani Ruchine & Another =vs= Swift Rutherford Company Ltd & Another
    (1976 - 1980) 1KLR 1500
  • Wilson Kazungu Katana & 101 Others =vs= Salim Abdallah Bakshwein & Another
    (2015) eKLR
  • Gatimu Kinguru =vs= Muya Gathangi
    (1976) KLR 253
  • Ndatho =vs= Itumo & 2 Others
    (2002) 2 KLR 637
Jurisdiction invoked
Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act (Cap 22)

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, "Kennedy Omondi Alando v Enock Ogweno Ochola [2018] KEELC 138 (KLR)", Case Analysis (2018). Originating Summons dated 6th December 2013 (Oyugis/Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/138/eng@2018-12-19

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