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ELCAllowedELC Case No. 342 of 2013· [2018] KEELC 3276 (KLR)

Anzelim Nyende Makuyi (Suing as the administrator of estate of Arnest Omubofu Omukongolo) v David Oyalo Andati & another [p [2018] KEELC 3276 (KLR)

Environment and Land Court at Kakamega
17 May 2018
NMN. A. Matheka
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court cancelled two title deeds after a family lived on the land for over 40 years, granting ownership through adverse possession.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of his late father Arnest Omubofu Omukongolo, filed an originating summons dated 19 November 2013 claiming that the family had occupied the original parcel Butsotso/Esumeyia/706 peacefully for over 40 years, and that the parcel had been irregularly closed upon subdivision into Butsotso/Esumeyia/3745 (registered to the 1st defendant, David Oyalo Andati) and Butsotso/Esumeyia/3746 (registered to the 2nd defendant, Alfred Musiko Tindi). He sought cancellation of the defendants' title deeds, reversion of the parcels to the original number in his name as administrator, surrender of the title deeds, and costs. The 1st defendant filed a replying affidavit asserting the original parcel had been sold and transferred to his late father in 1976, but did not testify. The 2nd defendant testified that he never knew of or consented to the registration, disclaimed ownership, and argued the burden shifted to the 1st defendant. The plaintiff and PW2 testified to continuous occupation, development, and burial of the deceased on the land, with the respondents never residing there. The court, applying principles from Wambugu v Njuguna as cited in Gerald Muriithi v Wamugunda Muriuki, found the elements of adverse possession proved on a balance of probabilities, holding that occupation exceeding twelve years had extinguished the defendants' titles. The court ordered cancellation of both title deeds, reversion of the parcels to Butsotso/Esumeyia/706 in the plaintiff's name as administrator, surrender of the deeds to the Land Registrar, and awarded costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

Yes - the plaintiff and family occupied the land peacefully for over 40 years, the defendants never resided on it, and the plaintiff's title by adverse possession was established

Reasoning

The court applied the Wambugu v Njuguna principles via Gerald Muriithi v Wamugunda Muriuki, testing whether the title holder had been dispossessed or discontinued possession for the statutory period. It found as fact that the deceased, father of the plaintiff, was the beneficial owner who lived on the land over 40 years, was buried there without complaint, and the family developed and utilized it while the respondents never resided on the land. The 1st defendant did not testify to rebut, and the 2nd defendant disclaimed ownership. Occupation exceeded 12 years; title matured by adverse possession.

p. 1
02

Whether the plaintiff proved his case to the required standard

Holding

Yes - proved on a balance of probabilities

Reasoning

The plaintiff testified and produced a grant ad litem giving him locus, official searches showing the subdivisions, and documents from local administration confirming a land dispute over the original parcel. PW2 corroborated his testimony. The 1st defendant did not come to court to rebut the plaintiff's allegations, while the 2nd defendant testified that he never participated in the transfer and did not own the land. On this uncontroverted evidence the court found the plaintiff's claim proved on a balance of probabilities and granted the reliefs sought.

p. 3

Legal principles established

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  • To acquire title by adverse possession, the owner must have been dispossessed or must have discontinued possession for the statutory period of twelve years
  • The Limitation of Actions Act on adverse possession contemplates two concepts: dispossession and discontinuance of possession
  • Where a claimant pleads agreement and alternatively adverse possession, possession becomes adverse after payment of the last installment of the purchase price, and title matures after 12 years' occupation

Court orders

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  1. 1.An order for cancellation of the defendants' title deeds Butsotso/Esumeyia/3745 and Butsotso/Esumeyia/3746 and the parcels reverting to the original No. Butsotso/Esumeyia/706 in the names of Anzelim Nyende Makuyi as administrator of the estate of Arnest Omubofu Omukongolo (deceased)
  2. 2.An order directing the defendants to surrender to the Land Registrar the title deeds for Butsotso/Esumeyia/3745 and Butsotso/Esumeyia/3746 in their possession for cancellation
  3. 3.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Limitation of Actions Actprovisions on adverse possession (not specifically numbered)

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 Article 162(2)(b) of the Constitution (land disputes), suit brought by originating summons for adverse possession

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anzelim Nyende Makuyi (Suing as the administrator of estate of Arnest Omubofu Omukongolo) v David Oyalo Andati & another [p [2018] KEELC 3276 (KLR)", Case Analysis (2018). ELC Case No. 342 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3276/eng@2018-05-17

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