Godfrey Wanjala Wafula & Kololi Wafula Nasiombeanother v Jairus Wakhungu Nalunda [2018] KEELC 3891 (KLR)
The bottom line
#A Bungoma court ruled family members occupying another relative's land for years must vacate, because occupation alone did not defeat his registered title.
What this practically means
#Executive summary
#Key legal issues
#Whether adverse possession was established over 2.3 acres of Kimilili/Kibingei/216
No. The suit was withdrawn before determination and the respondent proved ownership; occupation of the respondent's land did not extinguish his title
The plaintiffs withdrew their originating summons in 2016, leaving only costs, so the adverse possession questions were never judicially determined. The respondent then proved his counterclaim: the land was bought by his father and given to him as a gift inter vivos with Land Control Board approval, title stands in his name, and any occupation following the invasion of 1991 and the quashed tribunal award could not confer title on the applicants.
Whether orders of the land disputes tribunal could found the applicants' claim
No. The tribunal award was quashed on judicial review and the resultant subdivisions cancelled
The land disputes tribunal awarded the applicants' father 2.3 acres, but the respondent successfully sought judicial review in Bungoma HCC 53 of 1998 and the tribunal orders were quashed. The brother nonetheless used the tribunal orders to subdivide the parcel into Kimilili Kibingei 2414 and 2415, and the respondent had those numbers cancelled through Kimilili Miscellaneous Civil Suit No. 4 of 1995. The tribunal award therefore conferred no enforceable rights on the applicants.
Whether the respondent's title was subject to a trust for the estate of Wafula Mulunda John
No trust was established
The respondent testified that Kimilili/Kibingei/216 was given to him alone by his father, that the Land Control Board approved the transaction, and that he never exchanged the land with the late John Wafula Mulunda. The original title and green card were produced in the respondent's name. On that evidence the court found the land was the respondent's alone, defeating the pleaded trust and extinguishment claims.
Legal principles established
#- A party claiming adverse possession must prove open, peaceful, continuous occupation for the statutory period notwithstanding the registered owner's title
- Civil claims are determined on the balance of probability, and a registered owner who proves his title prevails
Court orders
#- 1.The originating summons was withdrawn by the plaintiffs with costs to the defendant
- 2.The defendant was allowed to fix his counterclaim for hearing and serve the applicant
- 3.The application dated 12/5/2017 seeking to set aside the formal proof order and for leave to file a counterclaim out of time was dismissed on 1/3/2018
- 4.The defendant's counterclaim succeeded: the land Kimilili/Kibingei/216 is his alone and the applicants should move out and vacate it
- 5.If the applicants do not move out, the respondent may evict them by the court broker with the help of the nearest police station
- 6.The respondent was awarded the costs of the suit and costs of the eviction
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over land claims (originating summons for adverse possession; not expressly stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Wanjala Wafula & Kololi Wafula Nasiombeanother v Jairus Wakhungu Nalunda [2018] KEELC 3891 (KLR)", Case Analysis (2018). Bungoma High Court Civil Suit (Originating Summons) arising from Kimilili; number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3891/eng@2018-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.