Elizabeth Savala v Hezekiah Kirahi Liyosi & another [2018] KEELC 703 (KLR)
The bottom line
#A Kakamega court handed a woman the land she had openly occupied since 1972, cancelling the 2010 buyer's registration because 12+ years of peaceful possession wins.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession
Yes - possession in excess of 12 years, open, peaceful and uninterrupted, proved on a balance of probabilities
The plaintiff testified that her husband bought the land and she took possession in 1972, built a home and carries out business there. Applying the Wambugu v Njuguna and Kimani Ruchire principles, the court found possession was open, peaceful and uninterrupted for over 12 years. The 2nd defendant, though served, failed to attend court and did not challenge the tribunal award, leaving his acquisition unexplained when the land was not vacant.
Effect of the 2nd defendant's failure to challenge the tribunal award
The court noted he never challenged the award despite alleging lack of jurisdiction
The 2nd defendant claimed in his replying affidavit that the tribunal had no jurisdiction, but never moved to challenge the award. His non-attendance at trial meant his assertion of innocent purchaser status went untested, and the court found the plaintiff's case proved on the undisputed evidence.
Legal principles established
#- To acquire title by adverse possession, the owner must have been dispossessed or must have discontinued possession for the statutory period
- Possession must be nec vi, nec clam, nec precario - without force, secrecy or persuasion
- Where a claimant bought land under an agreement, possession becomes adverse after payment of the last installment of the purchase price
Court orders
#- 1.A declaration that the plaintiff Elizabeth Savala is rightfully entitled to registration as proprietor through adverse possession of land parcel known as Nyang'ori/Banja/1039 and that the registration of the 2nd defendant James Kashamba Aludira thereon as proprietor be cancelled
- 2.The respondents to pay the costs of the originating summons to the applicant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under originating summons for adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Savala v Hezekiah Kirahi Liyosi & another [2018] KEELC 703 (KLR)", Case Analysis (2018). Environment & Land 48 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/703/eng@2018-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.