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ELCDismissedELC Case No. 54 of 2013· [2019] KEELC 203 (KLR)

Gregory Mutachi Wamache v Kweyu Okumu Ramadhan & another [2019] KEELC 203 (KLR)

Environment and Land Court
17 December 2019
NMN.A. Matheka
1,973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a land claimant's adverse possession case because he could not prove 12 years of continuous, exclusive occupation.

What this practically means

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Executive summary

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This was a first-instance adverse possession claim before the Environment and Land Court at Kakamega. Gregory Mutachi Wamache, the plaintiff, claimed he had occupied one acre subdivided from the defendants' land since 1997, when his father purchased it under a written agreement, and sought to be registered as proprietor on the basis that 16 years of occupation had extinguished the 1st defendant's title, defeating the title subsequently obtained by the 2nd defendant, Don Makhali Wa Opembe, who bought the acre from the 1st defendant in 2012 and was registered on 31 July 2012 after a search, payment of Kshs 250,000 and Land Control Board consent. The court framed six questions, principally whether the plaintiff had acquired title by adverse possession and whether the 2nd defendant received good title. Relying on sections 24(a) and 26(1) of the Land Registration Act and the authorities of Elijah Makeri Nyangw'ra, Wambugu v Njuguna, Gerald Muriithi v Wamugunda Muriuki, Francis Gicharu Kariri and Kimani Ruchire v Swift Rutherfords, the court held that a claimant must prove possession as of right - nec vi, nec clam, nec precario - continuous, exclusive and uninterrupted for at least twelve years. The plaintiff failed to discharge this burden: the court found interruptions and disputes, and noted it was unclear why he stopped using the land if he had possessed it since 1997. The 2nd defendant was found to have had exclusive use since his purchase and holds a good title. The suit was dismissed with costs to the defendants on 17 December 2019.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

The plaintiff failed to prove over 12 years of exclusive, continuous and uninterrupted possession; his claim of adverse possession failed

Reasoning

Applying Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, the court assessed whether the title holder was dispossessed or discontinued possession for the statutory period. The plaintiff's own testimony that he used the land for about 15 years was contradicted by evidence of disputes and interruptions, and the court found it unclear why he stopped using the land if he had taken possession in 1997. The 2nd defendant had exclusive use from 2012. The burden of proof on a balance of probabilities was not met.

p. 3
02

Whether the 2nd defendant holds a good title as an innocent purchaser

Holding

The 2nd defendant, a registered proprietor with a title deed obtained after due search, consent and payment, holds a good title; the title in an innocent third party can only be impugned if obtained illegally, unprocedurally or through a corrupt scheme

Reasoning

The court invoked sections 24(a) and 26(1) of the Land Registration Act and Elijah Makeri Nyangw'ra. The 2nd defendant conducted a certificate of search confirming the 1st defendant as registered owner, executed a written agreement for Kshs 250,000, obtained Land Control Board consent and was registered on 31 July 2012, taking exclusive possession. No fraud or corrupt scheme was proved against him, so his indefeasible title stands against the plaintiff's failed adverse possession claim.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, the claimant must prove possession as of right - nec vi, nec clam, nec precario - continuous and uninterrupted for at least 12 years, with the owner's dispossession or discontinuance of possession
  • Where a claimant pleads an agreement and alternatively adverse possession, possession becomes adverse after payment of the last instalment of the purchase price

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The plaintiff to pay the defendants' costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actprovisions on adverse possession

Cases cited (5)

  • Elijah Makeri Nyangw'ra -vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to ownership and title of land

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, "Gregory Mutachi Wamache v Kweyu Okumu Ramadhan & another [2019] KEELC 203 (KLR)", Case Analysis (2019). ELC Case No. 54 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/203/eng@2019-12-17

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