Benedictor Etabale Masaba v Edwin N. Opanga & 2 others [2018] KEELC 2129 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed a 26-year adverse possession claim because the buyer couldn't prove open, peaceful possession for 12 years.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established adverse possession over the suit land
The claim failed; the plaintiff did not prove continuous, peaceful, open and exclusive possession for over twelve years
The court applied the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, requiring proof of dispossession or discontinuance of the proprietor's possession for twelve years, and possession held nec vi, nec clam, nec precario. The court found the sale agreements exhibited had been altered as to acreage, date and consideration, casting doubt on whether the plaintiff took possession at all. The plaintiff only placed a caution in 2012. His claim therefore fell short on a balance of probabilities.
Whether the sale agreements proved the plaintiff's purchase and possession of the land
The agreements did not inspire confidence; they bore unexplained alterations
The court perused the sale agreements produced as PEx1 and observed that the acreage appeared altered, with no explanation offered for alterations to size, date and consideration price. The court also found it curious that the plaintiff never regularised or re-executed the agreement during the seller's lifetime between 1992 and 1996. These circumstances left the court doubtful that the plaintiff ever took possession of the suit property.
Legal principles established
#- To acquire title by adverse possession, the claimant must prove dispossession of the proprietor or discontinuance of his possession for the statutory period of twelve years
- Where a claimant pleads a right to land under a sale agreement and alternatively seeks adverse possession, time runs from payment of the last installment of the purchase price
- Possession relied on for adverse possession must be as of right, nec vi, nec clam, nec precario
Court orders
#- 1.The plaintiff's suit is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (Cap 22), section 38
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mary Njiiri Muruga & 2 others v Grace Njeri Mugane & another [2019] KEELC 554 (KLR)[2019] KEELC 554 (KLR)26 Nov 2019
Cite this brief
#Cite this brief
Caselaw, "Benedictor Etabale Masaba v Edwin N. Opanga & 2 others [2018] KEELC 2129 (KLR)", Case Analysis (2018). ELC Case No. 222 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2129/eng@2018-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.