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ELCPartially AllowedELC Case No. 54 of 2018· [2019] KEELC 325 (KLR)

Ramadhan Otimi Mukonzo v John Wesonga Olunga & another [2019] KEELC 325 (KLR)

Environment and Land Court
17 December 2019
1,672 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court declared a man who occupied land openly for over 12 years its rightful owner, even though others held the title deeds.

What this practically means

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Executive summary

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The plaintiff, Ramadhan Otimi Mukonzo, suing on behalf of the estate of the late Salim Mukonzo Keya, claimed three subdivisions of South Wanga/Ekero/373 (parcels 5175, 5176 and 3856) by adverse possession. He sought declarations that the respondents held the land in trust for him and the larger family, that the respondents' rights had been extinguished by over twelve years of continuous occupation, an order under Section 38 of the Limitation of Actions Act that he be registered as owner and issued with a title deed, and costs. He testified that he was born on the land in 1977, that his grandfather Iddi Keya Opete bought it from Pofiki Olunga (father of the 1st defendant) in 1971, that the seller vacated, and that a Land Disputes Tribunal order directing transfer was adopted as SRMC Misc Award No. 10 of 2010. The defendants were served but neither attended court nor filed a response, leaving the plaintiff's evidence unchallenged. Matheka J set out the indefeasibility provisions of the Land Registration Act (sections 24(a) and 26(1)) and relied on Elijah Makeri Nyangw'ra, Gerald Muriithi v Wamugunda Muriuki, Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords on the requirements of adverse possession: nec vi, nec clam, nec precario possession for twelve years. The court found the plaintiff in exclusive, continuous, uninterrupted and open possession for over twelve years and held he had proved his case on a balance of probabilities. The court declared the respondents hold the parcels in trust, declared the plaintiff owner by adverse possession, ordered the respondents to transfer the land within thirty days, and made no orders as to costs.

Key legal issues

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01

Whether adverse possession was established over the suit parcels

Holding

Yes; the plaintiff proved exclusive, continuous, uninterrupted and open possession for over 12 years on a balance of probabilities

Reasoning

The plaintiff testified he was born on the suit land in 1977 and has lived there all his life; his grandfather bought the land in 1971 and the seller vacated. A Land Disputes Tribunal order directed transfer and was adopted as SRMC Misc Award No. 10 of 2010. The defendants were served but did not attend court or file a response, so the plaintiff's unchallenged evidence stood. Applying the Wambugu v Njuguna and Kimani Ruchire principles, the court found possession continuous, open and unbroken for over 12 years, entitling the plaintiff to title by adverse possession.

p. 2
02

Effect of the respondents' registered title

Holding

Registration vests absolute ownership under sections 24(a) and 26(1) of the Land Registration Act, but such title can be impugned where acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court set out the indefeasibility provisions of the Land Registration Act and relied on Elijah Makeri Nyangw'ra, holding that title in the hands of an innocent third party can still be impugned where the acquisition was illegal, unprocedural or through a corrupt scheme. The registered owners were the 2nd defendant (parcels 5175 and 5176) and the 1st defendant (parcel 3856), but the plaintiff's adverse possession claim, unchallenged by the defendants, prevailed over their registered titles.

p. 2
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Principles governing proof of adverse possession

Holding

Dispossession or discontinuance of possession by the title holder for the statutory period must be shown; possession must be nec vi, nec clam, nec precario

Reasoning

Relying on Gerald Muriithi v Wamugunda Muriuki quoting Wambugu v Njuguna, the court recited that the owner must have lost his right by dispossession or discontinuance, that proof is assessed by whether the title holder was dispossessed or discontinued possession for the statutory period, and that where a claimant pleads an agreement in the alternative to adverse possession, time runs from payment of the last instalment of the purchase price.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession the claimant must prove nec vi, nec clam, nec precario possession for the statutory period of 12 years

Court orders

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  1. 1.Declaration that the respondents hold in trust for the applicant and the larger family of Mukonzo Salim Keya the whole of land parcels South Wanga Ekero/5175, 5176 and South Wanga/Ekero/3856 subdivisions of South Wanga/Ekero/373
  2. 2.Declaration that the plaintiff/applicant is the owner of South Wanga Ekero/5175, 5176 and South Wanga/Ekero/3856 subdivisions of South Wanga/Ekero/373 by virtue of adverse possession
  3. 3.Order that the defendants/respondents transfer the suit land to the plaintiff/applicant within 30 days from the date of judgment
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Act Cap 22Section 38

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
Environment and Land Court jurisdiction under the Environment and Land Court Act; claim brought under Section 38 of the Limitation of Actions Act Cap 22

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, "Ramadhan Otimi Mukonzo v John Wesonga Olunga & another [2019] KEELC 325 (KLR)", Case Analysis (2019). ELC Case No. 54 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/325/eng@2019-12-17

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