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ELCDismissedELC Case No. 52 of 2014· [2018] KEELC 1793 (KLR)

Wallace Airo Lawi & 2 others v Lystone Ambundo [2018] KEELC 1793 (KLR)

Environment and Land Court
25 September 2018
NMN. A. Matheka
1,566 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan family lost their 30-year adverse possession land claim because they could not prove open, peaceful, uninterrupted occupation for 12 years.

What this practically means

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Executive summary

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The three plaintiffs brought an originating summons before the Environment and Land Court at Kakamega claiming title to land parcel No. KISA/MUNDEKU/633 (1.6 acres) by adverse possession, seeking its transfer to them and cancellation of the defendant's registration as absolute proprietor. They alleged occupation of the land for over thirty years, building a home, and open and notorious possession known to neighbours. The defendant testified that he purchased the land in January 2014 from Emilly Natite Muhambe, who had inherited it through Kakamega High Court Succession Cause No. 213 of 1985, obtained title on 29 January 2014, and found that the plaintiffs had cautions on the land and had earlier signed an admission in Kakamega CMCC No. 191 of 2005 that they were on the land illegally and would move out. He maintained that only about one month had elapsed between his registration and the filing of the suit and that the plaintiffs were trespassers. The court, guided by Wambugu v Njuguna as set out in Gerald Muriithi v Wamugunda Muriuki, and by Kimani Ruchire v Swift Rutherfords and Francis Gicharu Kariri v Peter Njoroge Mairu, restated that adverse possession requires dispossession or discontinuance of the owner's possession for twelve years, openly, peacefully and without permission (nec vi, nec clam, nec precario). It found that the 2nd and 3rd plaintiffs' occupation was not open, peaceful and uninterrupted for twelve years, that the 1st plaintiff did not live on the land, and that the plaintiffs failed to prove their case on a balance of probabilities. The originating summons was dismissed with no orders as to costs, the parties being relatives.

Key legal issues

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01

Whether the plaintiffs acquired title to KISA/MUNDEKU/633 by adverse possession

Holding

No - the plaintiffs failed to prove open, peaceful and uninterrupted possession for twelve years; the 1st plaintiff did not live on the land and the 2nd plaintiff admitted residing there illegally and signing an undertaking to move out

Reasoning

The court applied the principles in Wambugu v Njuguna as restated by Sergon J in Gerald Muriithi v Wamugunda Muriuki, and Kimani Ruchire v Swift Rutherfords. It found as a fact that the 2nd and 3rd plaintiffs moved onto the land after their brother died and signed an admission of illegal residence, interrupting any claim of adverse possession. The 1st plaintiff admitted he did not live on the land. The requisite open, peaceful and continuous possession for twelve years was therefore not established on a balance of probabilities.

p. 2
02

Whether the defendant's title, acquired by purchase from Emilly Natite Muhambe in January 2014, should be cancelled

Holding

No - the defendant held a registered title obtained by transfer and the plaintiffs' possession claim was defeated

Reasoning

The defendant purchased the land from the registered proprietor, did an official search, entered a sale agreement on 5 January 2014 and was registered on 27 January 2014. The plaintiffs' originating summons was filed only about a month after his registration, so the limitation period had plainly not run against him. The plaintiffs' claim, founded on occupation predating the purchase, failed on the evidence, and the defendant described them as trespassers without colour of right.

p. 2

Legal principles established

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  • To acquire title by adverse possession against land with a known owner, the claimant must prove dispossession of or discontinuance of possession by the owner for a continuous period of twelve years
  • Possession must be as of right - nec vi, nec clam, nec precario - and the owner must have knowledge, actual or constructive, of the possession
  • 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 plaintiffs' originating summons claiming title by adverse possession is dismissed
  2. 2.No orders as to costs, the parties being relatives

Authorities

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Legislation

  • Limitation of Actions Actprovisions on adverse possession (dispossession and discontinuance of possession)

Cases cited (4)

  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR 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 disputes relating to title to land (adverse possession claim 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, "Wallace Airo Lawi & 2 others v Lystone Ambundo [2018] KEELC 1793 (KLR)", Case Analysis (2018). ELC Case No. 52 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1793/eng@2018-09-25

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