Joseph Makokha Akhulunya v James Thomas Andafu [2018] KEELC 3231 (KLR)
The bottom line
#A Kakamega court cancelled a registered owner's title and handed the land to a man who had lived on it openly for over twelve years.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession of land parcel Butsotso/Indangalasia/248 for over 12 years
The plaintiff proved continuous, exclusive, open and uninterrupted occupation since 1974 with the full knowledge of the registered proprietor, who never occupied or utilized the land, and his claim on a balance of probabilities succeeded
The court found it undisputed that the defendant was registered owner and that in 1974 the plaintiff agreed to sell him 7 1/2 acres, the defendant paying only a Ksh. 3,000 deposit, with the balance never paid and the deposit refunded by money orders in 1981. The plaintiff remained in occupation, developed the land, built houses, farmed it and buried family members without any interruption. The defendant never resided on, developed or stepped on the land despite holding title. Occupation inconsistent with the proprietor's rights for such a prolonged period extinguished the defendant's title by effluxion of time.
Whether the defendant's proprietary interests were extinguished and the title should be cancelled
The defendant's right to own the suit land was extinguished by lapse of time; he holds the title deed in trust for the plaintiff in occupation, and the title was ordered cancelled and the land transferred to the plaintiff
Applying the principles in Gerald Muriithi v Wamugunda Muriuki as drawn from Wambugu v Njuguna, the court held that the title holder had been effectively dispossessed and had discontinued possession for the statutory period. Adverse possession debars the owner's rights or converts the possessor into owner. Since the defendant's rights were extinguished, the land was to be transferred to the plaintiff and his registered title revoked.
Legal principles established
#- To acquire title by adverse possession, the proprietor must have been dispossessed or have discontinued possession for the statutory period of twelve years
- Where a claimant bought land under an agreement and seeks adverse possession in the alternative, possession becomes adverse after payment of the last installment of the purchase price, and twelve years must run thereafter
- Prolonged occupation inconsistent with the rights of the true proprietor raises a rebuttable presumption that the adverse possessor is the true owner or that the true owner has abandoned the land
Court orders
#- 1.A declaration that the defendant's/respondent's proprietary interests in land parcel No. Butsotso/Indangalasia/248 have been extinguished by virtue of the plaintiff's/applicant's adverse possession
- 2.That the title deed issued in the names of James Thomas Andafu as sole proprietor of land parcel No. Butsotso/Indangalasia/248 be cancelled and/or revoked and the land be transferred to the plaintiff/applicant as sole proprietor
- 3.Costs to be borne by the defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as established for land and environment disputes), determining an originating summons for adverse possession
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Makokha Akhulunya v James Thomas Andafu [2018] KEELC 3231 (KLR)", Case Analysis (2018). ELC Case No. 619 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3231/eng@2018-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.