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ELCPartially AllowedELC. No. 84 of 2012· [2018] KEELC 682 (KLR)

Monica Anyango Aluoch v Lucia Olala & 4 others [2018] KEELC 682 (KLR)

Environment and Land Court
21 November 2018
2,030 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu court ruled that land registered in your name is yours, and that living on it with the owner's permission cannot ripen into ownership through adverse possession.

What this practically means

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Executive summary

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The plaintiff, widow of the late Walter Joshua Ongor, sued the five defendants (the family of the late Washington Olala Wende) seeking eviction from Kisumu/Gem Rae/432, a permanent injunction, and alternatively a declaratory trust order over Kisumu/Gem Rae/931. She averred that Washington's family had been allowed temporary settlement on parcel 432 during floods, that an exchange of parcel 432 for parcel 931 was agreed, and that having inherited parcel 432 through transmission (succession in Kisumu High Court Succession Cause No. 232 of 2011) she was entitled to vacant possession. The defendants denied the exchange, asserted ancestral ownership and contended that the plaintiff held the title in trust for Washington's family, alternatively that Washington had acquired the land by adverse possession during adjudication. The court framed six issues covering first registration, the nature of both families' occupation, trusts, orders and costs. It found both parcels were first registered on 31 July 1980 in the names of the two patriarchs with no trust indicated, rejected the claim of registration in trust for a patriarch said to be away at adjudication, held the defendants' occupation was with the consent and authority of the plaintiff's family so that adverse possession could not run, and found the exchange arrangement disowned by the defendants. Judgment was entered for the plaintiff: vacant possession of Kisumu/Gem Rae/432 within ninety days with eviction in default, a permanent injunction restraining interference, and costs of the suit with interest against the defendants.

Key legal issues

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01

Registration and trust over the suit parcels

Holding

Both parcels were first registered on 31 July 1980, one in the name of Walter Joshua Ongor and the other in the name of Washington Olala Wende, and nothing in the title documents suggested any registration in trust

Reasoning

The court examined copies of registers and certificates of official searches produced in evidence which showed first registration of both parcels on the same date in the names of the two family patriarchs. There was no endorsement or other documentary indication of a trust in favour of either family. The claim of registration in trust was therefore unsupported by the title documents and rebutted testimony.

p. 3
02

Defence of ancestral land and registration in trust during adjudication

Holding

The claim that Walter Joshua Ongor was registered with the suit land in trust for Washington Olala Wende who was away during adjudication could not be true, since Washington was himself registered with parcel 931 and thus participated in or was represented at adjudication

Reasoning

The court reasoned logically: if Washington Olala Wende obtained registration of parcel 931, he either took part in the adjudication process or had people act for him. It follows that he could equally have been registered with parcel 432 had it been intended for him. The trust/ancestral land defence was therefore rejected as incapable of being true on the documentary record.

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Adverse possession

Holding

The defendants' claim of title by adverse possession failed because their occupation was with the consent and authority of the plaintiff's family, and the twelve-year period of adverse occupation had not lapsed when the suit was filed in October 2012

Reasoning

The court found that the defendants' family's occupation of Kisumu/Gem Rae/432 was with the consent and authority of PW 2 and the late Walter Joshua Ongor, an arrangement confirmed by witnesses and elders in 2011/2012. Occupation with the owner's consent is not adverse. Further, even if occupation turned adverse when the defendants began claiming ownership in 2011/2012, more than twelve years had not elapsed by the time of filing.

p. 3
04

Disposition where an agreed land exchange was disowned

Holding

Since the defendants disowned the exchange arrangement between the families, the fair outcome was for each family to take back the parcel registered in its name

Reasoning

The evidence established an arrangement whereby the families exchanged their respective parcels. The defendants disowned this arrangement both before the elders and before the court. The court found it just that each family revert to the parcel registered in its own name, which underpinned the order for vacant possession of parcel 432 to the plaintiff.

p. 3

Legal principles established

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  • Occupation of registered land with the consent and authority of the registered proprietor negates adverse possession, as the twelve-year limitation period does not run from such occupation
  • Where a person was registered with one parcel at adjudication, a claim that another parcel was meant to be registered with him but was not cannot stand, as nothing prevented his registration on that title

Court orders

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  1. 1.The defendants by themselves, their servants and or agents to give the plaintiff vacant possession of land parcel Kisumu/Gem Rae/432 within ninety (90) days and in default eviction order to issue to be executed in accordance with the law
  2. 2.Upon the defendants giving vacant possession of Kisumu/Gem Rae/432 to the plaintiff or being evicted, a permanent injunction issued restraining them from cultivating, constructing or in any other manner interfering with the plaintiff's use of the said land
  3. 3.The defendants to pay the plaintiff's costs of the suit and interest thereon
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (jurisdiction over land disputes)

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, "Monica Anyango Aluoch v Lucia Olala & 4 others [2018] KEELC 682 (KLR)", Case Analysis (2018). ELC. No. 84 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/682/eng@2018-11-21

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