Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case No. 371 of 2013· [2018] KEELC 2165 (KLR)

Joseph Shikanda Chuma v Mohammed Omollo Khayundi [2018] KEELC 2165 (KLR)

Environment and Land Court
26 July 2018
NMN.A. Matheka
1,278 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kakamega dismissed a man's claim to own land by adverse possession because he could not prove he actually lived on it.

What this practically means

#

Executive summary

#
The plaintiff, Joseph Shikanda Chuma, brought an originating summons dated 6th June 2013 in the Environment and Land Court at Kakamega claiming entitlement to land parcel MARAMA/LUNZA/1188 (2.4 hectares) by adverse possession. He sought a declaration that he had occupied the land openly, peacefully, continuously and exclusively since 1962, that the registered owner, Mohammed Omollo Khayundi, held the title in trust for him, that the title had been extinguished after twelve years, and an order compelling transfer of the parcel. The plaintiff testified he had lived on the land all his life, land belonging to his late father Musa Juma Omukami, and only discovered on 3rd August 1995 registration in the defendant's name when seeking succession documents. The defendant testified he bought the land from the plaintiff's father and took possession, calling witnesses including a caretaker and the plaintiff's own brother, who placed the plaintiff on parcel MARAMA/LUNZA/1192. Applying the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, Matheka J found the evidence left doubt as to which parcel the plaintiff occupied, and that his occupation had not been shown to be peaceful, open, uninterrupted, quiet and exclusive for over twelve years. The court held the plaintiff had failed to establish his case on a balance of probabilities, dismissed the originating summons with costs on 26th July 2018.

Key legal issues

#
01

Whether the plaintiff was in open, peaceful, continuous and exclusive occupation of the suit land for the statutory period

Holding

No - the plaintiff failed to prove the requisite occupation

Reasoning

The court found doubt as to which parcel the plaintiff occupied. Evidence including PW2 and the official search certificate DEx 3 indicated the plaintiff and his family resided on parcel MARAMA/LUNZA/1192, where the houses stood and the father-in-law was buried, not on the suit parcel 1188. Occupation was therefore not established to have been peaceful, open, uninterrupted, quiet and exclusive for over 12 years.

p. 2
02

Whether the plaintiff acquired title by adverse possession

Holding

No - the suit was dismissed with costs

Reasoning

Applying the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, the plaintiff had to prove dispossession of or discontinuance by the registered owner for twelve years, nec vi, nec clam, nec precario. On the evidence the court found the plaintiff had failed to establish his case on a balance of probabilities.

p. 2

Legal principles established

#
  • To acquire title by adverse possession, the claimant must prove dispossession of the registered owner or discontinuance of the owner's possession for the statutory period of twelve years
  • Possession relied on must be nec vi, nec clam, nec precario - without force, secrecy or persuasion - and to the knowledge, actual or constructive, of the title holder

Court orders

#
  1. 1.The plaintiff's originating summons is dismissed
  2. 2.The plaintiff to pay costs of the suit

Authorities

#

Legislation

  • Limitation of Actions ActProvisions on adverse possession

Cases cited (4)

  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 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
Original jurisdiction of the Environment and Land Court over a claim for declaration of title to land by adverse possession (originating summons dated 6th June 2013)

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.

Cite this brief

#

Cite this brief

Caselaw, "Joseph Shikanda Chuma v Mohammed Omollo Khayundi [2018] KEELC 2165 (KLR)", Case Analysis (2018). ELC Case No. 371 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2165/eng@2018-07-26

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