Benson Kitala Fiketi v Julius Aswani Weramolio [2019] KEELC 213 (KLR)
The bottom line
#A Kenyan court declared a man who occupied and farmed land openly for over 12 years its lawful owner, despite the defendant holding the registered title.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired title to Kakamega/Shamberere/187 by adverse possession
Yes. The plaintiff proved exclusive, continuous and uninterrupted possession and open use for more than 12 years from 1993, and his case was established on a balance of probabilities.
The court set out the principles from Wambugu v Njuguna via Gerald Muriithi v Wamugunda Muriuki: the owner must have been dispossessed or have discontinued possession for the statutory 12-year period. Where the claim is founded on a purchase agreement pleaded in the alternative, time runs from payment of the last instalment. The plaintiff entered in 1983, farmed the land continuously, planted sugarcane and trees, and buried the deceased as next of kin. The defendant never stepped on the land. The court found the possession continuous, unbroken and open, exceeding 12 years from 1993, and established on a balance of probabilities.
The indefeasibility of the defendant's registered title and whether it can be challenged
The defendant is the registered owner, but under sections 24(a) and 26(1) of the Land Registration Act a title is challengeable on proof of fraud or misrepresentation to which the proprietor is a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme.
The court cited section 24(a) of the Land Registration Act vesting absolute ownership on registration, and section 26(1) protecting the certificate of title subject to the two statutory exceptions. It adopted Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna, which held that a title in the hands of an innocent third party can still be impugned where it was obtained illegally, unprocedurally or through a corrupt scheme. The plaintiff alleged fraudulent registration by the defendant, and the adverse possession claim was assessed against this backdrop.
Legal principles established
#- Registration vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- Where a claimant pleads the right to land under an agreement and in the alternative seeks adverse possession, the claimant's possession becomes adverse to the owner after payment of the last instalment of the purchase price, and title matures on occupation for at least 12 years after such payment
- To prove adverse possession, the claimant must show possession used as of right, nec vi, nec clam, nec precario (no force, no secrecy, no persuasion), with the owner having knowledge of the possession, and the possession continuous and unbroken
Court orders
#- 1.The plaintiff be declared the owner of Kakamega/Shamberere/187 by virtue of adverse possession and the defendant be ordered to transfer the said portion of land to the plaintiff within 30 days from the date of judgment
- 2.In default of voluntary transfer by the defendant, the Deputy Registrar of the Court be authorized to execute all documents necessary to effect the subdivision and transfer of the portion of the aforesaid land to the plaintiff
- 3.No orders as to costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over claims relating to title and adverse possession of land parcel Kakamega/Shamberere/187
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Kitala Fiketi v Julius Aswani Weramolio [2019] KEELC 213 (KLR)", Case Analysis (2019). ELC CAS.E No. 374 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/213/eng@2019-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.