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. 326 of 2013· [2018] KEELC 2720 (KLR)

Rosalia Masabakwa Abwiba & 3 others v Francis Walumbe & another [2018] KEELC 2720 (KLR)

Environment and Land Court
28 June 2018
NMN.A. Matheka
1,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The four applicants, widow and children of the late Arnold Masabakhwa Abwiba, filed an originating summons claiming they had acquired the whole of land parcel Butsotso/Shikoti/1449 (0.5 acre) by adverse possession. They testified they had lived on the land since 1946, built permanent homes, planted crops and trees, and that the 1st respondent, registered as proprietor in the 1970s, had never asserted his claim until strange visitors appeared in September 2013, after which he laid claim to the land and allegedly sold it to the 2nd respondent. They alleged the 1st respondent was fraudulently registered and that their late husband and father never sold the land. The 1st respondent testified he lawfully purchased the 0.5 acre from the late Arnold Masabakhwa Abwiba in 1974, obtained the land registrar's consent, and subdivided Butsotso/Shikoti/225 into parcels 1448 and 1449; the transfer was witnessed by the land registrar and the 2nd applicant himself, and he maintained a semi-permanent house on the land until selling to the 2nd respondent in September 2013. The court applied the adverse possession principles from Wambugu v Njuguna as set out in Gerald Muriithi v Wamugunda Muriuki, requiring proof that the proprietor was dispossessed or discontinued possession for the statutory period. Finding no fraud in the registration and preferring the 1st respondent's evidence, the court held the applicants had failed to prove their case on a balance of probabilities and dismissed the originating summons with costs.

Key legal issues

#
01

Whether the Applicants established adverse possession for the statutory 12-year period

Holding

The claim failed; the Applicants did not prove dispossession or discontinuance of the registered owner's possession

Reasoning

The court applied the principles in Wambugu v Njuguna as set out by Sergon J in Gerald Muriithi v Wamugunda Muriuki, requiring proof that the title holder was dispossessed or discontinued possession for 12 years. The 1st respondent proved he purchased 0.5 acre from the late Arnold Masabakhwa Abwiba in 1974, obtained consent, subdivided Butsotso/Shikoti/225, and maintained a semi-permanent house on the land until selling in 2013. The court found no fraud in the registration.

p. 2
02

Whether the 1st respondent's registration was fraudulent

Holding

No fraud was established in the acquisition and registration of the 1st respondent

Reasoning

The applicants alleged the respondent was fraudulently registered and that their father never sold the land. However, the 1st respondent produced a title deed, letter of consent from the land registrar, and a transfer form signed by the seller and witnessed by the land registrar and the 2nd applicant himself. The court found the applicants did not know how the subdivision occurred and held there were no elements of fraud.

p. 2

Legal principles established

#
  • To acquire title by adverse possession the owner must have lost his right either by being dispossessed or by discontinuing possession; acts of dispossession must be inconsistent with the owner's enjoyment of the soil
  • Proof of adverse possession is assessed by whether the title holder has been dispossessed or discontinued possession for the statutory period, not merely by the claimant's own possession
  • Where a claimant pleads an agreement and alternatively adverse possession, time runs after payment of the last instalment of the purchase price

Court orders

#
  1. 1.The originating summons is dismissed
  2. 2.Costs to the Respondents

Authorities

#

Legislation

  • Limitation of Actions Actprovisions on adverse possession (generally)

Cases cited (2)

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

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Rosalia Masabakwa Abwiba & 3 others v Francis Walumbe & another [2018] KEELC 2720 (KLR)", Case Analysis (2018). ELC Case No. 326 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2720/eng@2018-06-28

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