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ELCDismissedELC Case No. 240 of 2012· [2018] KEELC 1674 (KLR)

Samson Paul Onunga v Raphael Weche Okubo [2018] KEELC 1674 (KLR)

Environment and Land Court
19 September 2018
NMN.A. Matheka
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an adverse possession claim because intermittent farming on someone else's land, without exclusive open occupation for 12 years, doesn't give you ownership.

What this practically means

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Executive summary

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The applicant, Samson Paul Onunga, sought a declaration that he had acquired the whole of land parcel LR No. West Bunyore/Ebusiekwe/517 by adverse possession, having alleged that he purchased it in 1984, took vacant possession and had been in open, peaceful and uninterrupted occupation since; he sought orders that the respondent hold the land in trust for him, transfer it to him, and pay costs. The respondent, Raphael Weche Okubo, the registered owner, countered that he purchased the land under a sale agreement dated 19th June 1993 from the late Ezekiel Munala Ngota, obtained consents, an official search, letters of administration and a title deed free of encumbrances; that in early 1996 he found the applicant farming the land, reported him to the Chief, and that a Council of Elders meeting on 16th December 1996 resolved the applicant should desist from trespassing. The respondent's six witnesses, including the seller's wife, confirmed there was no structure on the land and that the applicant was a relative who used to lease the land for cultivation. Applying the principles in Wambugu v Njuguna, Gerald Muriithi v Wamugunda Muriuki, Francis Gicharu Kariri v Peter Njoroge Mairu and Kimani Ruchire v Swift Rutherfords, the court held that the applicant's intermittent cultivation was neither exclusive, peaceful nor uninterrupted for the statutory 12-year period and that he was not truthful about residing on the land. The suit was dismissed with costs to the respondent.

Key legal issues

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01

Elements of adverse possession

Holding

The claimant must prove dispossession or discontinuance of possession by the registered owner for 12 years, and that possession was peaceful, open, uninterrupted, quiet and exclusive

Reasoning

The court adopted the principles in Wambugu v Njuguna as set out by Sergon J in Gerald Muriithi v Wamugunda Muriuki, and the Kimani Ruchire test of nec vi, nec clam, nec precario. The burden was on the applicant to prove possession adverse to the registered owner for the statutory period; possession must be continuous and not broken by interruption or permission.

p. 2
02

Credibility and nature of applicant's occupation

Holding

The applicant's occupation was intermittent cultivation, not adverse possession; he was not truthful about residing on the land

Reasoning

All the defendant's witnesses testified there was no structure or house on the land, and DW2, the seller's wife, testified the applicant was a relative who used to lease the land for cultivation. The Council of Elders meeting of 16th December 1996 had directed the applicant to stop trespassing, showing his possession was interrupted and permissive rather than adverse.

p. 2

Legal principles established

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  • To acquire title by adverse possession, the proprietor must have been dispossessed or must have discontinued possession for the statutory period
  • Possession under a sale agreement becomes adverse after payment of the last instalment of the purchase price, and 12 years' occupation thereafter confers title
  • Adverse possession must be nec vi, nec clam, nec precario - without force, secrecy or permission

Court orders

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  1. 1.The applicant's case is dismissed with costs
  2. 2.Costs of the suit awarded to the respondent

Authorities

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Legislation

  • Limitation of Actions Actprovisions on adverse possession (not specified)

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
Environment and Land Court jurisdiction over land parcel LR West Bunyore/Ebusiekwe/517 (adverse possession claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samson Paul Onunga v Raphael Weche Okubo [2018] KEELC 1674 (KLR)", Case Analysis (2018). ELC Case No. 240 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1674/eng@2018-09-19

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