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ELCPartially AllowedOriginating Summons dated 19th July 2013· [2018] KEELC 2084 (KLR)

Dickson Ogunde Were v Esther Njeri Gitau & 3 others [2018] KEELC 2084 (KLR)

Environment and Land Court
16 July 2018
1,672 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 confirmed that openly living on and farming someone else's land for over 12 years can legally make it yours.

What this practically means

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Executive summary

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The plaintiff, Dickson Ogunde Were, filed an originating summons dated 19th July 2013 under Sections 7, 17 and 38 of the Limitation of Actions Act and Order 37 and Order 40 of the Civil Procedure Rules, seeking a declaration that he had been in adverse possession of L.R. No. South Sakwa/Kogelo/326 for over twelve years, that the 2nd defendant's title was extinguished, an order that he be registered as proprietor in place of the 2nd defendant, an injunction pending hearing, and costs. The plaintiff claimed the land was his ancestral land originally registered in the name of his grandfather/father, Ishmael Were (Agunde/Ogunde), who died on 6th October 2012, and that the 2nd defendant was registered as proprietor on 10th October 2012 as successor of the estate of Godfrey Mwangi Gitau, although the plaintiff had lived openly on the land since 1962 and had never met the defendants. The defendants were served by newspaper advertisement as ordered by the court, failed to enter appearance or file a defence, and the suit proceeded ex parte, with the originating summons treated as a plaint and heard by viva voce evidence. Four witnesses testified; the area chief confirmed over 31 years of open, continuous and peaceful occupation without complaint. Counsel cited Wanje v Saikwa, Sisto Wambugu v Kamau Njuguna and Kanda Kimamet. Applying Kimani Ruchine and Halsbury's Laws, the court held that cultivation without fencing suffices as possession, and that the plaintiff's open and continuous possession for over 33 years dispossessed the 2nd defendant, extinguishing title under Section 17. The court found the plaintiff's case proved on a balance of probability and entered judgment in terms of prayers (b), (c), (d) and (e), including registration of the plaintiff and costs against the defendants jointly and severally. The interlocutory injunction prayer (a) was not among the orders granted.

Key legal issues

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01

Whether the plaintiff proved adverse possession of the suit parcel for the statutory period

Holding

Yes - the plaintiff, corroborated by three witnesses, proved open, continuous and peaceful possession and occupation for over 33 years, extinguishing the 2nd defendant's title

Reasoning

The plaintiff testified he had lived on the land since 1962, built his homestead and cultivated it. PW2 (a brother) confirmed 33 years of occupation, PW3 (the area chief of 31 years) confirmed open, continuous and peaceful occupation with no complaint from the defendants, and PW4 estimated 60 years. Relying on Wambugu, Kimani Ruchine and Kanda Kimamet, the court held that cultivation without fencing suffices, and that such possession dispossessed the registered owner.

p. 3
02

Whether the plaintiff is entitled to be registered as proprietor in place of the 2nd defendant

Holding

Yes - upon extinguishment of the 2nd defendant's title under Section 17 of the Limitation of Actions Act, the plaintiff became entitled to be registered as proprietor

Reasoning

Having found adverse possession established for well over the twelve-year period prescribed by Sections 7 and 17 of the Limitation of Actions Act, the court held that the 2nd defendant's title stood extinguished and that the plaintiff, who proved his case on a balance of probability, was entitled to the registration and transfer orders sought under Section 38 and Order 37 of the Civil Procedure Rules.

p. 3

Legal principles established

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  • Possession for the purposes of adverse possession can take different forms, including cultivation of the land without fencing
  • Cultivation of the surface without fencing off is sufficient to prove possession
  • Open, continuous possession for over twelve years extinguishes the registered proprietor's title under Section 17 of the Limitation of Actions Act

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally in terms of orders (b), (c), (d) and (e) of the originating summons dated 19th July 2013
  2. 2.Declaration that the plaintiff has been in adverse possession of L.R. No. South Sakwa/Kogelo/326 for over twelve years and the 2nd defendant's title is extinguished by virtue of Section 17 of the Limitation of Actions Act
  3. 3.The plaintiff to be registered as proprietor of L.R. No. South Sakwa/Kogelo/326 in place of the 2nd defendant
  4. 4.The 2nd defendant to transfer the suit parcel to the plaintiff, and in default the Deputy Registrar to execute the necessary transfer documents
  5. 5.Costs of the suit to the plaintiff, payable by the defendants jointly and severally

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)Sections 7, 17 and 38
  • Civil Procedure RulesOrder 37 Rules 3D and 3F; Order 40
  • Registration of Titles Act (Cap 281, Laws of Kenya)null

Cases cited (6)

  • Wanje-vs-Saikwa
    (1984) KLR
  • Sisto Wambugu-vs-Kamau Njuguna
    Civil Appeal Number 10 of 1982
  • Kanda Kimamet-vs-Chepkiyeng Kimamet Chebobei
    (2009) eKLR
  • Galaxy Paints Co. Ltd -vs- Falco Grounds Ltd
    (2000) 2EA 385
  • Kimani Ruchine and another-v-Swift Rutherford Company Ltd
    (1976-80) 1KLR 1500
  • Titus Ong'ang'a Nyachieo-v-Martin Okioma Nyauma and 3 others
    (2017) eKLR
Jurisdiction invoked
Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rules 3D and 3F and Order 40 of the Civil Procedure Rules

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, "Dickson Ogunde Were v Esther Njeri Gitau & 3 others [2018] KEELC 2084 (KLR)", Case Analysis (2018). Originating Summons dated 19th July 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2084/eng@2018-07-16

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