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ELCAllowedOriginating Summons dated 27th May 2011 (Kisumu)· [2018] KEELC 308 (KLR)

Carren Anyango Nyakeno v Elisha Ombujo Tunga [2018] KEELC 308 (KLR)

High Court of Kenya
30 November 2018
BOB. N. Olao
4,076 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A woman who openly lived on and farmed a plot since 1983 won full ownership in Kenya's High Court, because 12 years of undisputed possession extinguished the registered owner's title.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons on 27th May 2011 against the registered proprietor of KISUMU/KADERO GOT NYABONDO/2159 (approximately 0.07 Ha) claiming title by adverse possession. She deponed that in 1983 her late husband constructed her a house on a portion of the suit land and that she occupied and cultivated it openly, peacefully and continuously since then, including during the 25 years her husband worked in Tanzania. The Defendant denied the house stood on the suit land, asserted he purchased it in 2006 from Samuel Mbuya Wanda and a small portion from the deceased in June 2010, and relied on an 'extension agreement' of 10th July 2010 permitting the Plaintiff five feet of the land, contending her possession was with his consent. Olao J applied the tests in Kasuve v Mwaani and Kimani Ruchine, and the surveyor's report placing the house and grave on parcel 2159. The court found the land was first registered on 9th November 1992 in the name of Nelson Olale, when time began running, and that the 12-year period expired in 2004, extinguishing the registered title. The 2006 transfer did not interrupt time, and the Defendant, having no surviving interest, could not grant consent under the 2010 extension agreement, which was consequently inconsequential. Judgment was entered for the Plaintiff: declaration of adverse possession over the whole parcel, an order for her registration as proprietor (with the Deputy Registrar empowered to execute transfer documents on default), a permanent injunction against the Defendant, and each party to bear their own costs.

Key legal issues

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01

Whether the Plaintiff was in open, exclusive, peaceful and continuous possession of the suit land

Holding

Yes - the house, grave and cultivated portion were on parcel 2159, confirmed by the surveyor's report and the Defendant's own documents

Reasoning

The court found the Defendant's assertion that the house stood on a different parcel unproven, as he never identified the 'different title number'. The 2006 sale agreement referenced parcel 2159, and a licensed surveyor's report placed the house and grave on parcel 2159. The deceased could not have sold what he did not occupy. Occupation since 1983 was open, exclusive, peaceful and with the Defendant's knowledge.

p. 5
02

Whether the Defendant's 'extension agreement' of 10th July 2010 defeated the claim as possession with consent

Holding

No - the Defendant's title had already been extinguished by adverse possession in 2004, so he could not consent to anything

Reasoning

Relying on Wambugu v Njuguna, the Defendant argued possession was permissive under the extension agreement. The court held that the limitation period commenced on first registration in 1992 and expired in 2004, extinguishing the registered owner's title. The Defendant therefore had no interest capable of being granted, rendering the extension agreement inconsequential.

p. 5

Legal principles established

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  • Time for adverse possession runs against the first registered proprietor, and a later change of ownership does not interrupt it
  • Once the limitation period expires, the registered proprietor's title is extinguished and he cannot grant any consent or licence over the land

Court orders

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  1. 1.The Plaintiff has acquired title to the whole of the land parcel No. KISUMU/KADERO GOT NYABONDO/2159 by way of adverse possession
  2. 2.The Plaintiff should be registered as the proprietor of the whole land Parcel No. KISUMU/KADERO GOT NYABONDO/2159 and the Defendant to execute such transfer documents within 30 days of this judgment failure to which the Deputy Registrar of this court be at liberty to do so
  3. 3.A permanent order of injunction restraining the Defendant, his servants, agents, heirs and assigners and/or any other person acting on his behalf from interference with the Plaintiff's enjoyment of the land parcel No. KISUMU/KADERO GOT NYABONDO/2159
  4. 4.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSections 7, 13 and 17
  • Land Registration Act 2012Section 28(h)
  • Land Act 2012Section 7(d)

Cases cited (6)

  • KASUVE V. MWAANI INVESTMENT LTD & OTHERS
    2004 1 K.L.R. 184
  • KIMANI RUCHINE & ANOTHER V. SWIFT RUTHERFORDS & CO. LTD.
    1978-80 1 KLR 1500
  • WAMBUGU V. NJUGUNA
    1983 KLR 172
  • BENJAMIN KAMAU & OTHERS V. GLADYS NJERI
    C.A. Civil Appeal No. 2132 of 1996
  • MTANA LEWA V. KAHINDI NGALA MWAGANDI
    [2015 eKLR]
  • GITHU V. NDEETE
    1984 KLR 776
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (original civil jurisdiction; adverse possession claim over registered land)

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, "Carren Anyango Nyakeno v Elisha Ombujo Tunga [2018] KEELC 308 (KLR)", Case Analysis (2018). Originating Summons dated 27th May 2011 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/308/eng@2018-11-30

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