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ELCAllowedELC Case No. 188 of 2017 (formerly Machakos HCCC No. 114 of 2012 'OS')· [2018] KEELC 4505 (KLR)

Michael Ole Dikirr v Tananko Ole Kwena & 3 others [2018] KEELC 4505 (KLR)

Environment and Land Court
7 February 2018
COChristine Ochieng
1,912 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, by an Originating Summons dated 11th April 2012, sought a declaration that the defendants' title to at least five acres of land parcel KAJIADO/OLCHORO ONYORE/746 stood extinguished by adverse possession under section 7 of the Limitation of Actions Act, and an order vesting and registering that portion in his name. The defendants, though served, never entered appearance or filed replying affidavits; interlocutory judgment was entered on 8th July 2012 and the matter proceeded to formal proof before the Environment and Land Court at Kajiado. The Plaintiff testified that he purchased five acres from the 1st Defendant in 1981 for Kshs. 25,000 under a written sale agreement, obtained Land Control Board consent and executed a transfer which was never registered because the file disappeared at the Land Registry, whereupon the vendor allowed him into possession. He has occupied the land openly since 1981, farming and residing thereon without interference. A search revealed the land had been transferred to the 2nd, 3rd and 4th Defendants on 27th May 1990 while he was in occupation. Applying section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules, and relying on Daniel Kimani Ruchine v Swift Lotherford, Wambugu v Njuguna and Karuntimi Raiji v M'makinya, the court found 37 years of open, continuous and uninterrupted possession, well beyond the twelve-year period, and held the subsequent transfer could not defeat the claim. The Originating Summons was allowed with costs and the District Land Registrar Kajiado North ordered to register the Plaintiff as owner of the suit parcel.

Key legal issues

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01

Whether the Plaintiff proved continuous, open and uninterrupted occupation of the suit land for the statutory period

Holding

Yes. The Plaintiff occupied the land from 1981, some 37 years, openly and notoriously, without interruption or any attempt to evict him, satisfying the conditions for adverse possession

Reasoning

The Plaintiff purchased five acres in 1981 under a written sale agreement, obtained Land Control Board consent, executed a transfer and took possession, constructing a homestead and farming. The registered owners, the 2nd to 4th Defendants, were registered in 1990 while the Plaintiff was already in occupation, and no evidence of eviction or interference was adduced. The occupation exceeded the twelve-year limitation period, extinguishing the defendants' title.

p. 3
02

Whether the claim commenced by Originating Summons complied with Order 37 Rule 7 of the Civil Procedure Rules

Holding

Yes. Although no title deed was attached, the Plaintiff annexed a Certificate of Official Search of the suit land, which satisfied the requirement of an extract of title

Reasoning

Order 37 Rule 7 requires an application under section 38 of the Limitation of Actions Act to be brought by Originating Summons supported by an affidavit annexing a certified extract of title. The Plaintiff attached a Certificate of Official Search showing the defendants' registration of 27th May 1990, and the court accepted this as compliant with the rule.

p. 3

Legal principles established

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  • Adverse possession matures into title where the claimant proves open, continuous, notorious, actual and exclusive possession for at least twelve years without the owner's permission
  • Possession under leave and licence of the true owner becomes adverse only when the licence is determined
  • A subsequent transfer of the suit land to third parties does not defeat a claim for adverse possession

Court orders

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  1. 1.The Plaintiff's Originating Summons dated 11th April, 2012 and filed on 12th April, 2012 is allowed with costs
  2. 2.The District Land Registrar Kajiado North be and is hereby ordered to register the Plaintiff as the owner of land parcel number KAJIADO/OLCHORO ONYORE/746

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 38(1) and (2)
  • Limitation of Actions Actsection 37
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (3)

  • Daniel Kimani Ruchine & Others versus Swift Lotherford & Co. Ltd and Anor
    (1977) eKLR
  • Wambugu Versus Njuguna
    1983 KLR 174
  • Karuntimi Raiji Vs. M'makinya
    (2013) eKLR
Jurisdiction invoked
Section 38(1) and (2) of the Limitation of Actions Act, Cap. 22; Order 37 Rule 7 of the Civil Procedure Rules

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, "Michael Ole Dikirr v Tananko Ole Kwena & 3 others [2018] KEELC 4505 (KLR)", Case Analysis (2018). ELC Case No. 188 of 2017 (formerly Machakos HCCC No. 114 of 2012 'OS'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4505/eng@2018-02-07

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