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ELCDismissedELC Case No. 630 of 2014· [2018] KEELC 2081 (KLR)

Charles Munyendo Olingo v Salim Chetechi Makokha & another [2018] KEELC 2081 (KLR)

Environment and Land Court at Kakamega
12 July 2018
NMN.A. Matheka
1,752 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court dismissed a son's claim to land his father allegedly bought in 1966 because he could not prove anyone actually lived on or used it.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of his late father John Mashemo Olingo, brought an originating summons claiming title by adverse possession to parcel E/Wanga/Eluche/97, registered in the name of the 2nd defendant. He alleged his father bought the whole parcel from Aura Matete in 1966 by written sale agreement, paid the full purchase price, and occupied the land openly and continuously thereafter. He further alleged that after Aura Matete's death, the 1st defendant misrepresented himself as Aura Matete and unlawfully transferred the land to the 2nd respondent. The defendants denied the purchase and occupation, asserting Aura Matete lived on and used the land until transferring it to the 1st defendant in 2001, who sold it to the 2nd defendant, in possession since 2001 through his worker. Defence witnesses placed the plaintiff and his family on the neighbouring parcel E/Wanga/Eluche/86. The court adopted the principles in Wambugu v Njuguna as restated by Sergon J in Gerald Muriithi v Wamugunda Muriuki, requiring proof of dispossession or discontinuance of the proprietor's possession for twelve continuous years. The court found the plaintiff untruthful about being in possession, his own witness confirming residence on the neighbouring plot, and defence witnesses confirming the 2nd defendant's cultivation since 2001. The claim of adverse possession was not proved on a balance of probabilities, and the originating summons was dismissed with costs.

Key legal issues

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01

Whether the plaintiff proved adverse possession of E/Wanga/Eluche/97

Holding

The plaintiff failed to prove adverse possession; the claim was dismissed

Reasoning

The court set out the Wambugu v Njuguna principles as restated by Sergon J. The plaintiff alleged his father bought the land in 1966 and occupied it openly and continuously. However, the court found the plaintiff was lying about being in possession, and his own witness placed his house on the neighbouring parcel. DW3 and DW4 confirmed the 2nd defendant had been in possession and cultivating the land since 2001. On a balance of probabilities, the plaintiff did not prove dispossession or discontinuance of the proprietor's possession for the statutory twelve-year period.

p. 2
02

Whether the plaintiff's possession was open, continuous and uninterrupted for over 12 years

Holding

It was not established that the plaintiff or his father was in possession of the suit land

Reasoning

Although the plaintiff testified his father took possession in 1966 and used the land openly and continuously for over 35 years, the court observed during testimony that the plaintiff was untruthful about possession. His witness PW4 stated the plaintiff and his family live on the neighbouring parcel E/Wanga/Eluche/86, not the suit land. Defence witnesses confirmed the 2nd defendant's cultivation of the suit land since 2001. Possession therefore was not proved to the requisite standard.

p. 2

Legal principles established

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  • To acquire title by adverse possession, the owner must have been dispossessed or discontinued possession for a continuous period of twelve years
  • Where a claimant pleads a purchase agreement and alternatively adverse possession, possession becomes adverse after payment of the last instalment of the purchase price, and 12 years' occupation after that is required

Court orders

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  1. 1.The plaintiff's originating summons is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Actprovisions on adverse possession

Cases cited (2)

  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
Jurisdiction invoked
Originating summons for adverse possession under the Limitation of Actions Act (Environment and Land Court original jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Charles Munyendo Olingo v Salim Chetechi Makokha & another [2018] KEELC 2081 (KLR)", Case Analysis (2018). ELC Case No. 630 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2081/eng@2018-07-12

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