Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedEnvironment & Land 48 of 2012· [2018] KEELC 703 (KLR)

Elizabeth Savala v Hezekiah Kirahi Liyosi & another [2018] KEELC 703 (KLR)

Environment and Land Court
20 November 2018
1,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
The plaintiff, Elizabeth Savala, brought an originating summons claiming title to land parcel Nyang'ori/Banja/1039 by adverse possession. She testified that her late husband purchased the land from the 1st defendant under a written sale agreement and that she took possession in 1972, building a home and carrying out business there to date. She obtained an award from a land disputes tribunal in her favour, which was adopted by the Hamisi Principal Magistrate's Court, and was acquitted of a criminal charge concerning the land. The 2nd defendant, the registered proprietor since a 2010 transfer from the 1st defendant, asserted in a replying affidavit that he was the rightful owner, but did not attend court; the matter proceeded exparte. The court set out the adverse possession principles from Wambugu v Njuguna as adopted in Gerald Muriithi v Wamugunda Muriuki, and Kimani Ruchire v Swift Rutherfords on nec vi, nec clam, nec precario possession. Finding the plaintiff in open, peaceful and uninterrupted possession for over 12 years, and noting that the 2nd defendant never challenged the tribunal award nor explained how he acquired occupied land, the court held the claim proved on a balance of probabilities. It declared the plaintiff entitled to registration as proprietor through adverse possession, cancelled the 2nd defendant's registration, and ordered the respondents to pay the plaintiff's costs.

Key legal issues

#
01

Whether the plaintiff proved adverse possession

Holding

Yes - possession in excess of 12 years, open, peaceful and uninterrupted, proved on a balance of probabilities

Reasoning

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.

p. 2
02

Effect of the 2nd defendant's failure to challenge the tribunal award

Holding

The court noted he never challenged the award despite alleging lack of jurisdiction

Reasoning

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.

p. 2

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. 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. 2.The respondents to pay the costs of the originating summons to the applicant

Authorities

#

Legislation

  • Limitation of Actions Actprovisions on adverse possession

Cases cited (4)

  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire v Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
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.