Stephen Murunga Siundu v Ridah Alivitsa & another [2018] KEELC 1198 (KLR)
The bottom line
#A man who lived on land openly for decades won ownership through adverse possession, and the owners' family must transfer the title to him.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession of the suit parcels
Yes - the court found possession and occupation in excess of 12 years, open, peaceful and uninterrupted, and that the defendants hold the land in trust for the plaintiff
The plaintiff testified he was born on the land in 1953 and had lived there since; his mother was buried there. This was not disputed. From the evidence the court found possession and occupation in excess of 12 years in an open, peaceful and uninterrupted manner. The 1st defendant's assertion that the stay was permissive did not displace the plaintiff's proof, and the 2nd defendant failed to attend court to explain how he acquired part of the suit land. The case was proved on a balance of probabilities.
Whether permissive occupation defeats adverse possession
The 1st defendant argued that because the plaintiff was a nephew who stayed permissively, possession was not adverse; the court nevertheless found adverse possession established
The 1st defendant submitted that the plaintiff's stay as a nephew of her husband, who was himself buried on the land, was permissive and non-exclusive, relying on Wilson Kazungu Katana v Salim Abdalla Bakshwein which cited Samuel Miki Waweru v Jane Njeri Richu. The court applied the principles from Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, but on the evidence found the plaintiff's occupation exceeded 12 years openly and uninterruptedly, and declared him entitled by adverse possession.
Legal principles established
#- A claim of adverse possession cannot succeed where possession is with the permission of the owner
- To acquire title by adverse possession, the claimant must prove open, peaceful and uninterrupted possession for the statutory period of 12 years
- Where a claimant pleads an agreement to purchase land and alternatively adverse possession, possession becomes adverse after payment of the last installment of the purchase price
Court orders
#- 1.A declaration that the plaintiff is the owner of the portion of land parcel No. LP N/MARAGOLI/VIYALO/1682 and KAK/VIYALO/1683 (a subdivision of LP N/MARAGOLI/VIYALO/1369) by adverse possession, and the respondent is ordered to transfer title to the said parcel of land to the applicant
- 2.A declaration that the respondents hold title to the said parcels in trust for the applicant, with an order that they transfer title, and in default the Deputy Registrar to execute all documents necessary to effect the transfer
- 3.The respondents to pay the costs of the originating summons to the applicant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Murunga Siundu v Ridah Alivitsa & another [2018] KEELC 1198 (KLR)", Case Analysis (2018). ELC Case No. 376 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1198/eng@2018-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.