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ELCPartially AllowedFormerly Kisii ELC Case No. 173 of 2014 (OS); formerly Kisii ELC Case No. 235 of 2013· [2019] KEELC 140 (KLR)

Charles Ajwang’ Abeti (Suing As The Legal Representative Of Abeti Atinda, Deceased) v Charles Ochoro Rabach [2019] KEELC 140 (KLR)

Environment and Land Court of Kenya
6 November 2019
GOG. M. A. Ong'ondo
3,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer kept his title and evicted an occupier after a family's adverse possession claim failed for lack of proof.

What this practically means

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Executive summary

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Two consolidated suits concerning land parcel LR No. West Kasipul/Kodera-Karabach/168 (originally Kodera-Karabach/49) in Homa-Bay County were heard together. In the lead suit, Charles Ajwang' Abeti, as legal representative of Abeti Atinda (deceased), claimed by originating summons to be entitled to registration as proprietor by adverse possession, alleging the defendant Charles Ochoro Rabach had fraudulently registered himself as owner. Rabach denied the claim and, in the second consolidated suit, sued Moses Mogere (PW5) for eviction, alleging unlawful entry in January 2012. Mogere defended that he was merely a contractor for the Abeti family, who occupied the land. The court framed three issues: adverse possession, trespass, and entitlement to relief. Applying the ingredients in Wilson Kazungu Katana v Salim Abdalla Bakshwein, the court found that the land was registered in Rabach's name since 1979, but that it was Edward Atinda Ngodhe (PW2), not the plaintiff, who occupied and cultivated it; the plaintiff was therefore not in open and exclusive possession, and there was no dispossession of the registered owner. Further, the plaintiff produced no grant in respect of the deceased's estate and lacked locus standi per Troustik Union International v Jane Mbeya. The plaintiff's adverse possession suit was dismissed with costs. Conversely, Rabach, the registered proprietor in possession, proved that Mogere was in unlawful occupation prohibited by section 152A of the Land Act; judgment was entered for Rabach on his plaint, with Mogere ordered to vacate within thirty days, failing which an eviction order would issue. Judgment was delivered at Migori on 6th November 2019 by G. M. A. Ong'ondo, J.

Key legal issues

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01

Adverse possession

Holding

The plaintiff failed to prove adverse possession; he was not in open and exclusive possession and lacked locus standi for want of a grant

Reasoning

The court found that it was PW2 who occupied and cultivated the suit land, not PW1, so PW1 was not in open and exclusive possession adverse to DW1's title, and there was no dispossession of DW1. Further, PW1 relied on exhibits without any grant in respect of the estate of Abeti Atinda (deceased), so he lacked locus standi. The claim was dismissed with costs.

p. 4
02

Trespass

Holding

PW5 was a trespasser on the land owned and possessed by DW1; judgment entered for DW1 on the eviction claim

Reasoning

DW1 is the registered proprietor and was in possession; PW5, a contractor, erected a poultry house and began building a house on the land without DW1's permission. Unlawful occupation of private land is prohibited under section 152A of the Land Act. DW1 proved his claim against PW5 on a balance of probabilities and obtained eviction orders.

p. 4

Legal principles established

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  • The ingredients of adverse possession are that the land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession adverse to the title of the owner, and that occupation must exceed twelve years having dispossessed the owner
  • Evidence of cultivation as possession must be definite as to area and time
  • The burden of proving adverse possession lies on the plaintiff on a balance of probabilities
  • Trespass is any unjustified intrusion of a person upon land in the possession of another

Court orders

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  1. 1.The plaintiff's suit formerly Kisii ELC Case No. 173 of 2014 (the lead file), initiated by originating summons dated 2nd April 2014, is dismissed with costs to the defendant Charles Ochoro Rabach
  2. 2.In the defendant's consolidated suit formerly Kisii ELC Case No. 225 of 2015, judgment entered for Charles Ochoro Rabach in terms of orders (a) and (b) sought in his plaint dated 27th May 2013
  3. 3.Moses Mogere (PW5) to move out of the suit land LR No. West Kasipul/Kodera-Karabach/168 within thirty (30) days, in default of which an eviction order to issue

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 27
  • Evidence Act (Cap 80)sections 107 and 108
  • Limitation of Actions Act (Cap 22)sections 7, 9, 13, 17, 37 and 38
  • Land Registration Act, 2016 (2012)sections 2, 24, 25, 26, 25(1)(b) and 28(h)
  • Registered Land Act (Cap 300) (repealed)section 37
  • Land Act, 2016 (2012)section 152A

Cases cited (18)

  • Mtana Lewa v Kahindi Ngala Mwagadi
    (2015) eKLR
  • Maina v Hiram Gathiha Maina
    (2013) eKLR
  • Wanje v Saikwa
    (1984) KLR 284
  • Ndatho v Itumo and 2 others
    (2002) 2 KLR 637
  • Bhagwani Singh Kalsi v NHC
    (2017) eKLR
  • Morgan Air Cargo Ltd v Everest Enterprises Ltd
    (2014) KLR
  • Great Lakes Company (U) Ltd v Kenya Revenue Authority
    (2009) KLR 720
  • Salim v Boyd
    (197) EA 550
  • Wilson Kazungu Katana and 101 others v Salim Abdalla Bakshwein and another
    (2015) eKLR
  • Wainaina v Murai and another
    (1976-80) 1 KLR 283
  • West Bank Ltd v Arthur
    (1966) 3 LR 750
  • Muthuita v Wanoe and 2 others
    (2008) 1 KLR (G and F) 1024
  • Gatimu Kinguru v Muya Gathangi
    (1976) KLR 253
  • Titus Ong'ang'a Nyachieo v Martin Okioma Nyauma and 3 others
    (2017) eKLR
  • Tayebali Adamji Alibhai v Abdulhussein Adamji Alibhai
    (1938) 5 EACA 1
  • Ahmed Abdulkarim v Member for Land and Mines
    (1958) EA 436
  • Zacharia Onsogo Momayi v Evans Omurwa Onchagwa
    (2014) eKLR
  • Troustik Union International and another v Jane Mbeya and another
    (1993) eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act (Cap 22) and the Land Registration Act, consolidated suits transferred from the Kisii Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Charles Ajwang’ Abeti (Suing As The Legal Representative Of Abeti Atinda, Deceased) v Charles Ochoro Rabach [2019] KEELC 140 (KLR)", Case Analysis (2019). Formerly Kisii ELC Case No. 173 of 2014 (OS); formerly Kisii ELC Case No. 235 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/140/eng@2019-11-06

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