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ELCDismissedELC Case No. 356 of 2017· [2018] KEELC 2103 (KLR)

William Muhavi Sheywe v John Folio Shunza [2018] KEELC 2103 (KLR)

Environment and Land Court
24 July 2018
NMN.A. Matheka
2,461 words in judgment
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The bottom line

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A Kenyan court dismissed a man's 33-year land claim because his occupation of the property was interrupted by conflict, breaking the required 12 years of peaceful possession.

What this practically means

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Executive summary

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The plaintiff, William Muhavi Sheywe, claimed 3.5 acres out of land parcel KAKAMEGA/LUGARI/327 by adverse possession, alleging he purchased portions under agreements dated 28th January 1985 and 15th April 1988, took vacant possession, demarcated boundaries and established his home, occupying exclusively, peacefully and continuously since 1985. He sought a declaration of ownership, an order compelling the defendant to sub-divide and transfer, and costs. The defendant admitted selling 3.5 acres but contended the plaintiff failed to complete payment, that the transactions were rescinded, that the purchase price was refunded via J. Okello Advocate following a 6th November 1991 agreement witnessed by the Area Chief, and that the plaintiff's occupation was neither peaceful nor uninterrupted for 12 years. He also raised res judicata based on Kakamega PMCC 1309 of 1994, which was referred to the Land Dispute Tribunal and determined on appeal to the Provincial Appeals Committee. The court, applying Wambugu v Njuguna, Gerald Muriithi v Wamugunda Muriuki, Francis Gicharu Kariri v Peter Njoroge Mairu and Kimani Ruchire v Swift Rutherfords, held that the claimant must prove possession nec vi, nec clam, nec precario and that the title holder was dispossessed or discontinued possession for the statutory period. Finding that since 1991 there was no peace between the parties, the court held the plaintiff's occupation was not peaceful, open, uninterrupted, quiet and exclusive for over 12 years, and that 1985 to 1991 was only six years. The court also observed that rescission of the agreements and any refund were irrelevant since the claim was founded on adverse possession, not specific performance. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession to 3.5 acres of KAKAMEGA/LUGARI/327

Holding

The plaintiff failed to establish adverse possession because his occupation was not peaceful, open, uninterrupted, quiet and exclusive for over 12 years

Reasoning

The court adopted the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords requiring dispossession or discontinuance of the owner's possession and occupation that is nec vi, nec clam, nec precario. Though the plaintiff entered in 1985 and 1988 as a purchaser and took possession, the court found that from 1991 there was no peace between the parties, interrupting the requisite peaceful and uninterrupted possession. From 1985 to 1991 was only 6 years, short of the statutory 12-year period, so the claim failed on a balance of probabilities.

p. 3
02

Whether rescission of the sale agreements or refund of the purchase price defeats a claim of adverse possession

Holding

Where the claim is founded on adverse possession, rescission of the sale agreements and refund of the purchase price are not relevant to the determination

Reasoning

The court held that since the plaintiff's case was based on adverse possession and not specific performance, the central question was whether 12 years of adverse occupation had accrued. Whether the agreements were rescinded or the purchase price refunded did not bear on that question, as the plaintiff was not seeking specific performance of the contract. The court nonetheless found the possession itself was not uninterrupted, so the claim failed on the primary issue rather than on the rescission point.

p. 3

Legal principles established

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  • To acquire title by the statute of limitations to land with a known owner, the owner must have lost his right to the land either by being dispossessed of it or by discontinuing his possession
  • Where a claimant pleads the right to land under an agreement and in the alternative seeks adverse possession, possession becomes adverse after payment of the last instalment of the purchase price
  • A claimant must prove possession as of right: nec vi, nec clam, nec precario - no force, no secrecy, no persuasion

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs
  2. 2.It is so ordered
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; claim brought by originating summons dated 14th September 2001 for adverse possession

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, "William Muhavi Sheywe v John Folio Shunza [2018] KEELC 2103 (KLR)", Case Analysis (2018). ELC Case No. 356 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2103/eng@2018-07-24

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