Thomas Shiundu Muakalama v Mwanzo Obaye [2018] KEELC 742 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession of the suit land
The plaintiff, in open, peaceful and uninterrupted possession since 1975 (in excess of 12 years), proved his case on a balance of probabilities and was declared owner by adverse possession.
The court applied the principles in Wambugu v Njuguna as set out by Sergon J in Gerald Muriithi v Wamugunda Muriuki, requiring dispossession or discontinuance of the owner's possession for the statutory period. It also applied the Kimani Ruchire standard of possession nec vi, nec clam, nec precario, requiring continuity and the owner's knowledge. It was undisputed that the land was registered in the defendant's name, that the defendant never resided on or used it, and that the plaintiff had lived on it since 1975 and built a home there.
Whether the defendant held the land in trust for the plaintiff
The court declared that the defendant held title in trust for the plaintiff and ordered transfer of the title, with the Deputy Registrar to execute documents in default.
The plaintiff testified that his father bought the suit land and the defendant, his uncle, was to hold it in trust. Letters from the chief (PEx 3 and 2) confirmed that the defendant had never lived on the land and was to hold it in trust for the plaintiff. On the evidence, the court found the trust established and coupled it with the adverse possession declaration, ordering transfer of title to the plaintiff.
Legal principles established
#- To acquire title by the statute of limitations, the owner must have lost his right to the land either by dispossession or discontinuance of possession; dispossession requires acts inconsistent with the owner's enjoyment of the soil.
- The claimant must prove possession as of right: nec vi, nec clam, nec precario.
- Where a claimant pleads an agreement and alternatively adverse possession, possession becomes adverse after payment of the last installment of the purchase price, with 12 years' occupation thereafter.
Court orders
#- 1.A declaration that the plaintiff is the owner of the whole of land parcel No. Kakamega/Malava/443 by virtue of adverse possession, and the respondent is ordered to transfer title to the plaintiff
- 2.A declaration that the respondent holds title to the suit land in trust for the applicant, with transfer ordered and, in default, the Deputy Registrar to execute all documents necessary to effect the transfer
- 3.The respondent to pay the costs of the originating summons to the applicant
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land claims, invoking sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Shiundu Muakalama v Mwanzo Obaye [2018] KEELC 742 (KLR)", Case Analysis (2018). ELC Case No. 192 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/742/eng@2018-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.