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ELCPartially AllowedFormerly Kisii ELCC No. 55 of 2013 (lead file) and formerly Kisii HCCC No. 176 of 2013· [2019] KEELC 463 (KLR)

Fredrick Owich Damba & another v Samwel Maranga Chacha & 3 others [2019] KEELC 463 (KLR)

Environment and Land Court of Kenya
20 November 2019
3,223 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court stripped a registered landowner of her title because another family had openly farmed the land for over forty years without ever being evicted.

What this practically means

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Executive summary

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This judgment disposes of two consolidated suits transferred from the Kisii Environment and Land Court to the Migori Environment and Land Court, concerning LR No. Bugumbe/Masaba/523 (approximately 9.6 hectares), a subdivision of LR No. Bugumbe/Masaba/73 in Kuria West, Migori County. The plaintiff, substituted as legal representative of the estate of the original plaintiff, sued for a permanent mandatory injunction to stop trespass and to evict the defendants, claiming to be absolute registered proprietor through a chain of purchases from 1984 and 1993. The defendants denied trespass, pleaded fraud in the acquisition of the title, filed a counterclaim, and by originating summons under Order 37 Rule 7 and section 38 of the Limitation of Actions Act sought a declaration of adverse possession and transfer of the land to their names, asserting over forty years of open, continuous occupation. The court framed three issues: trespass, adverse possession, and entitlement to reliefs. It held that the defendants' long, open and exclusive occupation was adverse, not trespass; that they satisfied the Katana requirements for adverse possession having dispossessed the registered owner for over twelve years; and that the plaintiff's title was procured through fraudulent transfers, which fraud the defendants pleaded and proved on a balance of probabilities. The plaintiff's suit was dismissed and judgment was entered for the defendants on both the counterclaim and the originating summons, including a declaration of adverse possession and an order transferring the land to the defendants. No express costs order was made in the closing orders.

Key legal issues

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01

Whether the defendants' occupation of the suit land constituted trespass

Holding

The occupation was not trespass because the defendants had been in open possession for over forty years, defeating the plaintiff's injunction claim

Reasoning

The court adopted the definitions of trespass as an unjustifiable entry upon land in possession of another, and noted section 152A of the Land Act. However, DW1 and DW2 testified to residing and cultivating the land for over forty years, and the plaintiff never attempted eviction. Since possession was adverse and continuous rather than a fresh unjustified intrusion, the possession could not be characterized as trespass and the injunction claim failed.

p. 4
02

Whether the defendants acquired title by adverse possession

Holding

Yes. The defendants occupied the suit land openly, continuously and exclusively for a period in excess of twelve years, dispossessing the registered owner

Reasoning

Applying Wilson Kazungu Katana v Salim Abdallah Bakshwein, the court found the land was registered in the name of the original plaintiff, the defendants were in open and exclusive occupation adverse to that title for over twelve years, and there was no effort to evict them. The maxim nec vi, nec clam, nec precario applied. The claim was proved on a balance of probabilities and judgment was entered on the originating summons and counterclaim.

p. 5
03

Whether the plaintiff's title was fraudulently obtained

Holding

The court found the registration of the suit land arose from an alleged fraudulent purchase and that the plaintiff did not obtain title by purchase, transfer or transmission

Reasoning

Fraud was distinctly pleaded in the defence and counterclaim as required. The court noted that fraud and misrepresentation are grounds for impeaching a certificate of title under sections 26(1) and 80(1) of the Land Registration Act, and that the defendants' documentary exhibits demonstrated that the chain from the original first registration to the plaintiff was tainted by fraudulent transfers, overcoming the conclusiveness of the title.

p. 5

Legal principles established

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  • Long, open and continuous occupation exceeding twelve years adverse to the registered owner defeats a claim of trespass and establishes adverse possession
  • The requirements for adverse possession are that the land be registered in another's name, the applicant be in open and exclusive possession adverse to the owner's title, and occupation exceed twelve years
  • Fraud must be distinctly pleaded and proved to impeach a certificate of title

Court orders

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  1. 1.The plaintiff's claim in the 1st suit is dismissed
  2. 2.Judgment entered for the defendants jointly and severally against the plaintiff in terms of orders (i), (ii) and (iii) sought in the amended counterclaim dated 10th December 2018 and filed on 14th December 2018 in the 1st suit
  3. 3.Judgment entered for the defendants jointly and severally against the plaintiff in terms of orders 1, 2 and 3 sought in their originating summons dated 12th April 2013 and filed on 17th April 2013 in the 2nd suit (declaration of adverse possession and transfer of the land to the defendants' names)

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(1), (2)
  • Limitation of Actions Act (Cap 22, Laws of Kenya)sections 7, 37, 38
  • Land Registration Actsections 2, 24, 25, 26, 26(1), 80(1)
  • Land Actsection 152A
  • Evidence Act (Cap 80, Laws of Kenya)sections 107, 108, 109
  • Registered Land Act (Cap 300, repealed)section 37 (as cited in Wainaina v Murai)
  • Constitution of KenyaArticle 60(1)
  • Civil Procedure Rules 2010Order 10(1)(a) Rule 2

Cases cited (17)

  • Githu v Ndeete
    (1984) KLR 776
  • Kimani Ruchine and another v Swift Rutherford Company Ltd and another
    (1976-80) KLR 1500
  • Vijay Morjria v Nansingh Madhusingh Darbar and another
    (2000) eKLR
  • Kinyanjui Kamau v George Kamau
    (2015) eKLR
  • Katende v Haridas and Company Ltd
    (2008) 2 EA 174
  • Giella v Cassman Brown and Company Limited
    (1973) EA 358
  • Joel Kipkurui Arap Koech v Alice Wambui Mugandu and 3 others
    (2018) eKLR
  • Mrao Ltd v First American Bank Kenya Ltd and 2 others
    (2003) KLR 135
  • Esther Ndegi Njiru and another v Leonard Gatei
    (2014) eKLR
  • Galaxy Paints Company Ltd v Falcon Grounds Ltd
    (2000) 2 EA 385
  • Zacharia Onsongo Momanyi v Evans Omurwa Onchagwa
    (2014) eKLR
  • Salim v Boyd
    (1971) EA 550
  • Wilson Kazungu Katana and 101 others v Salim Abdallah Bakshwein and another
    (2015) eKLR
  • Wainaina v Murai and others
    (1976-80) 1 KLR 289
  • Gatimu Kinguru v Muya Gathangi
    (1976-80) KLR 317
  • Kuria Kiarie and 2 others v Sammy Magera
    (2018) eKLR
  • Samwel Kamere v Land Registrar Kajiado
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction over consolidated land disputes (plaint, defence and counterclaim, and originating summons under Order 37 Rule 7 Civil Procedure Rules and section 38 of the Limitation of Actions Act), following transfer from Kisii Environment and Land Court on 14 February 2017

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, "Fredrick Owich Damba & another v Samwel Maranga Chacha & 3 others [2019] KEELC 463 (KLR)", Case Analysis (2019). Formerly Kisii ELCC No. 55 of 2013 (lead file) and formerly Kisii HCCC No. 176 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/463/eng@2019-11-20

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