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ELCAllowedOriginating Summons dated 11th June 2012, amended 27th August 2018· [2018] KEELC 531 (KLR)

Aloys Adiango Olande v Samuel Amon Siaji & 3 others [2018] KEELC 531 (KLR)

Environment and Land Court
6 December 2018
MOM. A. Odeny
2,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that 20 years of open, uninterrupted farming gave a land buyer ownership by adverse possession, even over a later registered owner.

What this practically means

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Executive summary

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The plaintiff filed an originating summons dated 11th June 2012 (later amended) claiming that he had acquired parcels initially identified as Kisumu/Tamu/914 and Kisumu/Tamu/916, later corrected to 2.19Ha of Kisumu/Tamu/627 and 0.62Ha of Kisumu/Tamu/227, by adverse possession. He pleaded a sale agreement of 25th March 1998 with the 1st-3rd defendants (children of the late registered owner Jabes Anyango Nyakoyi), full payment of the purchase price, immediate occupation, and over 20 years of uninterrupted sugar-cane farming. After the registered owner died, the vendors obtained transmission of the land and sold it to the 4th defendant, Samuel Obudo, who bought 12 hectares in April 2012. The 3rd defendant admitted the sale to the plaintiff but noted an unpaid balance; the 4th defendant asserted due diligence. The matter proceeded ex parte after direct service. The court applied the test that adverse possession requires open, exclusive, continuous and uninterrupted occupation. It found the plaintiff's possession exceeded 12 years, was quiet, open, exclusive and without permission, and that subdivision, change of parcel description and change of proprietorship did not interrupt it, applying Githu v Ndeete. The 4th defendant's registration was held subject to the plaintiff's overriding adverse-possession interest, following Francis Mungai Kimani v Ngendo Kibogoro and Public Trustee v Wanduru; the 4th defendant's remedy lay against the vendors who were not candid with him. The court declared the plaintiff owner by adverse possession, cancelled the 4th defendant's registration, directed subdivision and issuance of title to the plaintiff, and awarded costs against the defendants.

Key legal issues

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01

Whether the plaintiff acquired the suit parcels by adverse possession

Holding

Yes - the plaintiff proved open, exclusive, quiet and uninterrupted occupation in excess of 12 years and is entitled to be registered as proprietor

Reasoning

The plaintiff entered under a sale agreement in 1998, took immediate possession, grew sugar cane for over 20 years without interruption. The 3rd defendant admitted the sale and occupation. Subdivision, change of parcel description and subsequent transmission and sale to the 4th defendant did not interrupt the possession, which was open, exclusive, peaceful and without the defendants' permission.

p. 3
02

Effect of the 4th defendant's registration as proprietor

Holding

The 4th defendant's title is subject to the plaintiff's overriding interest as adverse possessor; his remedy lies against the 1st-3rd defendants who were not candid with him

Reasoning

The 4th defendant bought from the 1st-3rd defendants after transmission but was not told of the plaintiff's purchase and occupation. Following Public Trustee v Wanduru and Francis Mungai Kimani v Ngendo Kibogoro, a successor in title acquires only the same rights and liabilities as the predecessor and takes subject to the adverse possessor's overriding interest.

03

Use of the sale agreement in an adverse possession claim despite incomplete transfer

Holding

The sale agreement is admissible only as evidence of the transaction and possession, not for specific performance, which is barred by limitation and Land Control Act provisions

Reasoning

Counsel submitted, citing Richard Satia & Partners v Samson Sichangi, that a contract for sale can evidence possession. The claim arises from adverse possession, not the agreement, and is not defeated by the misdescription of parcel numbers since the correct parcels were identified in the amended originating summons.

p. 3

Legal principles established

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  • The test of adverse possession is open, exclusive, continuous and uninterrupted occupation of the suit land
  • Subdivision or change of parcel description does not interrupt adverse possession
  • A purchaser's registration is subject to an existing adverse possessor's overriding interest

Court orders

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  1. 1.A declaration that the Plaintiff has acquired 2.19Ha of parcel KISUMU/TAMU/627 and 0.62Ha of parcel KISUMU/TAMU/227 by adverse possession
  2. 2.Cancellation of the registration of the 4th Defendant as the registered owner of KISUMU/TAMU/627 and KISUMU/TAMU/227
  3. 3.The Land Registrar and Land Surveyor of Awasi/Nyando Nyakach District to subdivide the two parcels and issue the Plaintiff with a title deed measuring 2.19Ha from KISUMU/TAMU/627 and 0.62Ha for KISUMU/TAMU/227 upon payment of the requisite charges
  4. 4.Defendants to pay costs of the suit

Authorities

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Legislation

  • Registered Land Act Cap 300section 30(a), (d) and (g)
  • Limitation of Actions Actsection 4
  • Land Control Actsections 6, 7 and 8

Cases cited (6)

  • Richard Satia & Partners and Another –vs- Samson Sichangi
    C.A Nakuru Civil Appeal No. 164 of 1995
  • Public Trustee –vs- Wanduru
    (1984) KLR
  • Peter Thuo Kairu –vs- Kuria Gacheru
    (1988) 2 KLR
  • Samuel Miki Waweru –vs- Jane Njeri Richu
    Nairobi C.A 122 of 2001
  • Githu –vs- Ndeete
    (1984) eKLR 776
  • Francis Mungai Kimani –vs- Ngendo Kibogoro
    [1988] eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act and the Registered Land Act Cap 300 (adverse possession claim by originating summons)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Aloys Adiango Olande v Samuel Amon Siaji & 3 others [2018] KEELC 531 (KLR)", Case Analysis (2018). Originating Summons dated 11th June 2012, amended 27th August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/531/eng@2018-12-06

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