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ELCAllowedELC Case No. 18 of 2017· [2018] KEELC 1789 (KLR)

Mary Shirako Oluma v Were Musie Odongo [2018] KEELC 1789 (KLR)

Environment and Land Court
20 September 2018
NMN.A. Matheka
1,400 words in judgment
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The bottom line

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A Kenyan court awarded a woman full ownership of land she bought in 1994 and lived on for over 25 years, through adverse possession.

What this practically means

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Executive summary

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This was an originating summons for adverse possession filed by Mary Shirako Oluma against Were Musie Odongo in respect of land parcel No. BUNYALA/NAMIRAMA/1300. The applicant claimed she purchased the parcel in 1993, paid the full purchase price, took possession and the original documents, and had occupied the land openly, peacefully, continuously and exclusively for 25 years, exceeding the 12-year limitation period. She sought declarations that she was the owner and that the respondent held the title in trust for her, an order compelling transfer, and costs. The respondent admitted the 1994 sale agreement but asserted a purchase price of Kshs. 35,000, of which he alleged Kshs. 16,000 remained unpaid, counterclaiming that balance plus 14% interest. Matheka J set out the adverse possession principles from Wambugu v Njuguna as restated in Gerald Muriithi v Wamugunda Muriuki, and the nec vi, nec clam, nec precario standard from Kimani Ruchire v Swift Rutherfords. The court found undisputed that the land was registered in the respondent's name, that the parties entered a sale agreement in 1994, and that the applicant and her family had occupied the land for over 25 years. PW1 confirmed the final payment in the presence of the respondent, who acknowledged full payment. The court held the respondent was attempting to unjustly enrich himself, noting he would not have surrendered the original documents absent full payment. The claim succeeded and the respondent was ordered to transfer the land, failing which the Deputy Registrar would execute the transfer, with costs to the applicant.

Key legal issues

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01

Whether the applicant proved adverse possession

Holding

Yes - the applicant's occupation of the suit land since 1993 was peaceful, open, uninterrupted, quiet and exclusive for over 12 years, entitling her to title by adverse possession

Reasoning

The court applied the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords. Occupation for over 25 years was undisputed and was exclusive, open and peaceful. The respondent admitted the 1994 sale agreement and that the applicant took possession and the original documents, undermining his claim of an unpaid balance. The claim succeeded on a balance of probabilities.

p. 2
02

Whether the respondent proved non-payment of the balance of the purchase price

Holding

No - the court found the respondent was attempting to unjustly enrich himself and disbelieved his claim that Kshs. 16,000 remained outstanding

Reasoning

PW1 from the chief's office confirmed the final payment of Kshs. 4,000 was made in his presence and that the defendant confirmed the purchase price was paid in full. The court reasoned that the respondent would not have handed over the original title documents had he not received full payment. His counterclaim for Kshs. 16,000 plus 14% interest was therefore rejected.

p. 2

Legal principles established

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  • To acquire title by adverse possession the claimant must prove dispossession or discontinuance of possession by the title holder for the statutory period, not merely possession for the requisite number of years
  • Where a claimant bought land and claims adverse possession, possession becomes adverse after payment of the last installment of the purchase price
  • Possession must be nec vi, nec clam, nec precario - without force, secrecy or persuasion

Court orders

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  1. 1.A declaration that the plaintiff/applicant is the owner of the whole of land parcel No. BUNYALA/NAMIRAMA/1300 by virtue of adverse possession and the respondent is ordered to transfer title to the applicant
  2. 2.A declaration that the respondent is holding title to land parcel No. BUNYALA/NAMIRAMA/1300 in trust for the applicant, with an order that in default of voluntary transfer the Deputy Registrar to execute all documents necessary to effect the transfer
  3. 3.The respondent to pay the costs of the originating summons to the applicant

Authorities

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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 under the Limitation of Actions Act - claim for adverse possession by originating summons

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, "Mary Shirako Oluma v Were Musie Odongo [2018] KEELC 1789 (KLR)", Case Analysis (2018). ELC Case No. 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1789/eng@2018-09-20

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