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ELCDismissedOriginating Summons dated 26th March 2012· [2018] KEELC 2905 (KLR)

Fred Okeyo Olande v Ruth Otieno Otiango (Sued as the Legal Administrator of Simon Ondigo Wakaya (deceased) [2018] KEELC 2905 (KLR)

Environment and Land Court
22 June 2018
JMJ. M. Mutungi
7,243 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~29 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisii dismissed a buyer's adverse possession claim because he failed to prove he ever actually occupied the disputed land.

What this practically means

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Executive summary

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The plaintiff, Fred Okeyo Olande, brought an originating summons against the defendant, the legal administrator of the estate of Simon Odindo Wakaya, seeking a declaration that the defendant's right to recover LR No. Central Karachuonyo/Konyango/2511 was barred under the Limitation of Actions Act, an order registering him as proprietor, and an injunction, on the basis that he had occupied the land adversely for over 20 years following a 1991 purchase from the deceased. The defendant opposed, asserting her late husband had purchased the same land from the deceased in January 1987 and had been in possession until his death in 1992, after which she continued to use the land and had it transmitted to her. She further asserted the plaintiff's purchase price was refunded through his mother in 2009. The court framed four issues: possession, adverse possession, reliefs and costs. Relying on the correspondence with the Land Adjudication and Settlement Officer in 1991, the testimony of the assistant chief and the defendant's witness, the court found the defendant's husband was in possession when the plaintiff purportedly purchased the land, that the plaintiff never entered or developed the land, and that the defendant's ability to re-fence the property in 2009 showed she retained possession. Time therefore never ran against the true owner. The court held the plaintiff had not discharged the burden of proving adverse possession on a balance of probabilities, dismissed the suit, and awarded costs to the defendant.

Key legal issues

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01

Whether the plaintiff was in possession and occupation of the suit property

Holding

The court found the plaintiff was not in possession; the defendant's late husband and then the defendant were in possession

Reasoning

Contemporaneous correspondence between the deceased, the defendant's husband and the Land Adjudication and Settlement Officer in 1991 showed the defendant's husband was fencing and erecting structures on the land when the plaintiff claimed to have entered. The assistant chief testified no structures or activity by the plaintiff existed on the land, and the defendant was able to re-fence the property in 2009, demonstrating she retained possession.

p. 6
02

Whether the plaintiff's possession amounted to adverse possession entitling him to be registered as proprietor

Holding

The claim failed; adverse possession was not proved on a balance of probabilities

Reasoning

Adverse possession requires possession that is peaceful, open, continuous and hostile for twelve years, inconsistent with the true owner's rights. There was no clear evidence of when or how the plaintiff entered possession; the defendant's possession was never dispossessed or discontinued, so time under the Limitation of Actions Act never ran against the true owner.

p. 7

Legal principles established

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  • A claimant in adverse possession must prove actual, open, hostile and continuous possession to the exclusion of the true owner for the statutory period of 12 years
  • The fact that the registered owner can effectively re-fence the property demonstrates retention of possession inconsistent with a claim of adverse possession

Court orders

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  1. 1.The plaintiff's originating summons is dismissed
  2. 2.Costs of the suit to the defendant

Authorities

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Legislation

  • Limitation of Actions ActChapter 22, Laws of Kenya
  • Land Adjudication Actnull

Cases cited (7)

  • Fortunatus Charles Kamau -vs- Administrators of the Estate of the late Serah Njeri Kangethe
    [2009]
  • Wambugu -vs- Njuguna
    [1983] KLR 172; also cited as [1998] KLR 173
  • Kweyu -vs- Omutut
    [1990] KLR 709
  • Ruth Wangari Kanyagia -vs- Josephine Muthoni Kinyanjui
    [2017] eKLR
  • Kamataka Board of Wakf -vs- Government of India & Others
    [2004] 10 SCC 779
  • Githu -vs- Ndeete
    [1984] KLR 776
  • Kimani Ruchine & Another -vs- Swift, Rutherford Co. Ltd & Another
    [1976-80] 1 KLR 1500
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act (Cap 22) for a declaration of adverse possession; first-instance Originating Summons

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fred Okeyo Olande v Ruth Otieno Otiango (Sued as the Legal Administrator of Simon Ondigo Wakaya (deceased) [2018] KEELC 2905 (KLR)", Case Analysis (2018). Originating Summons dated 26th March 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2905/eng@2018-06-22

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