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ELCDismissedELC Case No. 327 of 2017· [2018] KEELC 1261 (KLR)

Francis Amoyi Makokha v Leonida Ashono Ingoi & another [2018] KEELC 1261 (KLR)

Environment and Land Court
9 October 2018
NMN.A. Matheka
1,551 words in judgment
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The bottom line

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The Kakamega Environment and Land Court dismissed a man's claim to own family land through adverse possession because he failed to prove 12 years of continuous occupation.

What this practically means

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Executive summary

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The plaintiff brought an originating summons under section 38 of the Limitation of Actions Act claiming title to parcel No. Butsotso/Indangalasia/354 by adverse possession. He sought declarations that the defendants' rights were extinguished, that the land was held in trust for him after 12 years, that the transfer by the 1st defendant to the 2nd defendant was fraudulent and should be cancelled, and an order that he be registered as owner. He alleged occupation from 1972 and cultivation of sugar cane, and relied on an injunction issued in 1997 which he said the respondents breached by uprooting his cane and effecting the transfer. The 2nd defendant maintained he was an innocent purchaser for value who bought the land in 1996, completed the transfer documents and found cane on the land. The 1st defendant had inherited the ancestral land and sold it. The court, guided by Wambugu v Njuguna, Kimani Ruchire v Swift Rutherfords and Francis Gicharu Kariri v Peter Njoroge Mairu, restated the principles of adverse possession: dispossession or discontinuance for 12 years, and possession nec vi, nec clam, nec precario, continuous and unbroken. Applying these, the court found that although the plaintiff had cane on the land, he testified he did not reside on the parcel, resided on his own land, and could not identify where he cultivated. The plaintiff failed to prove continuous possession for 12 years on a balance of probabilities. The suit was dismissed with costs on 9 October 2018.

Key legal issues

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01

Whether the plaintiff established adverse possession of title No. Butsotso/Indangalasia/354

Holding

The plaintiff failed to prove continuous and uninterrupted possession for the statutory period of 12 years

Reasoning

Although the plaintiff alleged occupation from 1972 and cultivation of sugar cane, he testified that he does not reside on the suit parcel and could not point out exactly where he cultivated. The defendants' witnesses confirmed cane on the land but that he was told to remove it. The court found the plaintiff had not discharged the burden of proving continuous possession for 12 years and dismissed the suit.

p. 2
02

Whether the plaintiff, being a relative residing on his own land, was in possession as of right

Holding

The plaintiff's occasional cultivation did not amount to the exclusive, continuous possession required for adverse possession

Reasoning

The court noted the land was ancestral land inherited by the 1st defendant, that the plaintiff is a relative with his own land on which he resides, and that he admitted he does not reside on the suit parcel. Occasional cultivation without ability to identify the specific area cultivated fell short of dispossession or discontinuance by the proprietor.

p. 2
03

Whether the 2nd defendant's registration as proprietor was tainted by fraud or bad faith

Holding

The transfer claim failed; the 2nd defendant purchased the land and found cane on it, meaning the plaintiff's alleged interest predated the purchase, but the adverse possession claim itself was not proved

Reasoning

The 2nd defendant purchased in 1996 and admitted finding cane on the land, so the land was not in vacant possession. However, since the plaintiff failed to establish the necessary continuous possession for the limitation period, the foundational claim failed and with it the fraud and cancellation prayers.

p. 2

Legal principles established

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  • To acquire title by adverse possession, the owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession for the statutory period
  • A claimant must prove possession as of right, nec vi, nec clam, nec precario - no force, no secrecy, no persuasion
  • Possession relied upon must be continuous and not broken for any temporary purposes or interrupted
  • Where a claimant pleads an agreement and alternatively adverse possession, possession becomes adverse after payment of the last instalment of the purchase price

Court orders

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  1. 1.The originating summons is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Actsection 38

Cases cited (8)

  • Mawani vs. Mawani
    1977 KLR 159
  • John Kundu Khisa vs. Kenedy Khisa Kindu
    (2013) eKLR
  • Kimani Ruchine vs. Swift Ritherford & Company Ltd
  • Gachira vs. Gachira
    Nyeri Civil Appeal No. 325 of 2003
  • 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
Environment and Land Court jurisdiction over claims to title by adverse possession under the Limitation of Actions Act (Cap 22), section 38

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, "Francis Amoyi Makokha v Leonida Ashono Ingoi & another [2018] KEELC 1261 (KLR)", Case Analysis (2018). ELC Case No. 327 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1261/eng@2018-10-09

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