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ELCPartially AllowedBungoma High Court Civil Case No 7 of 2009 (consolidated with Bungoma High Court Civil Case No 76 of 2009 (OS))· [2019] KEELC 694 (KLR)

Edwin Juma Lumbasi & another v Julius Naibei [2019] KEELC 694 (KLR)

High Court of Kenya
14 November 2019
4,459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Bungoma ordered a long-standing occupier evicted because he failed to prove 12 years of peaceful, open possession of the land.

What this practically means

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Executive summary

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Two consolidated Bungoma High Court suits were determined together: Civil Case No 7 of 2009 in which the plaintiffs, registered proprietors since 25th November 2008 of land parcel NO MALAKISI/WEST SASURI/762, sought the defendant's eviction; and Civil Case No 76 of 2009 (OS) in which the defendant Counter-claimed under the Limitation of Actions Act for a declaration that he had become entitled to the land by adverse possession, alleging his late father purchased it from the then registered owner AINEAH WAMEMBA MUREFU in 1993 and had occupied it openly and peacefully since. The court, Boaz N. Olao J, found the plaintiffs' registration unimpeached and their title valid. It held that the 1993 sale agreements did not involve the registered proprietor, who alone could sell, and the defendant conceded in cross-examination that AINEAH MREFU was not a party to the agreements; entry onto the land was therefore through stealth. The District Officer's letters of 1998, 2002 and 2005 showed the occupation was disputed and not peaceful, defeating the requirement that adverse possession be nec vi nec clam nec precario. The court applied Githu v Ndeete on continuity of possession across transfers and Kasuve v Mwaani Investments on the ingredients of adverse possession, but found those ingredients unproved. Judgment was entered for the plaintiffs: eviction if the defendant did not vacate within three months, execution by Court Bailiffs under Section 152 of the Land Act, dismissal of the Counter-Claim, and costs of the suit and Counter-Claim to the plaintiffs.

Key legal issues

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01

Whether the defendant proved adverse possession of the suit land

Holding

The defendant failed to prove adverse possession; his entry was not peaceful and his occupation was disputed from as early as 1998

Reasoning

The court found the sale agreements of 1993 did not involve the registered proprietor AINEAH WAMEMBA MUREFU, so any entry was through stealth. The District Officer's letters of 1998, 2002 and 2005 showed the occupation was disputed and not peaceful. The ingredients of adverse possession - exclusive, open, peaceful, continuous possession for 12 years - were therefore not met, and the defendant's Counter-Claim failed.

p. 6
02

Validity of the plaintiffs' title and their right to evict

Holding

The plaintiffs hold a valid title registered on 25th November 2008, not impeached for fraud, and are entitled to eject trespassers

Reasoning

Registration under the then Registered Land Act (Section 27) conferred absolute ownership, subject only to overriding interests under Section 30. The defendant never impeached the plaintiffs' title as fraudulent, forged or illegally obtained. Holding a valid title, the plaintiffs are entitled to all rights of registered proprietors, including the right to evict trespassers such as the defendant.

p. 6
03

Whether the 1993 sale agreements founded the defendant's claim

Holding

The purported sellers had no interest to transfer since the registered proprietor was not a party to any of the sale agreements

Reasoning

The defendant himself conceded in cross-examination that AINEAH MREFU, the registered owner, was not a party to the agreements dated 21st February 1993, 4th March 1993, 6th March 1993 and 28th June 1993. There was no evidence the registered proprietor authorized others to sell. The defendant therefore did not enter peacefully through a valid sale, undermining the adverse possession claim based on a purchase.

p. 4

Legal principles established

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  • The mere change of ownership of land occupied by a person in adverse possession does not interrupt that possession; time runs against predecessors in title
  • A claimant to land by adverse possession must prove exclusive, open and uninterrupted possession as of right for 12 years
  • Occupation under adverse possession must be nec vi nec clam nec precario - not by force, stealth or licence

Court orders

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  1. 1.An order for the eviction of the defendant from land parcel NO NORTH MALAKISI/WEST SASURI/762 if he does not voluntarily vacate within three (3) months from the date of the Judgment
  2. 2.The eviction to be carried out by the Court Bailiffs/Auctioneers in accordance with Section 152 of the Land Act
  3. 3.The defendant's Counter-Claim is dismissed
  4. 4.The plaintiffs shall have costs of the suit and the dismissed Counter-Claim

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Registered Land Act (repealed)Section 27
  • Registered Land Act (repealed)Section 30
  • Land Registration Act 2012Sections 25 and 28
  • Land ActSection 152

Cases cited (8)

  • TITUS KIGORO MUNYI .V. PETER MBURU KIMANI
    2015 eKLR
  • PETER THUO KAIRU .V. KURIA GACHERU
    1988 2 KLR 111
  • GITHU .V. NDEETE
    1984 KLR 776
  • KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS
    2004 1 KLR 184
  • R .V. OXFORDSHIRE EX PARTE SUNNINGWELL PARISH COUNCIL
    1999 3 ALL. E.R
  • KIMANI RUCHINE .V. SWIFT RUTHERFORDS & CO LTD
    1980 KLR 10
  • GRACE WAIRIMU SORORA .V. CHAKA LTD & OTHERS
    2017 eKLR
  • MTANA LEWA .V. KAHINDI NGALA MWAGANDI
    2015 eKLR (C.A CIVIL APPEAL NO 56 OF 2014 MALINDI)
Jurisdiction invoked
Original civil jurisdiction of the High Court over the consolidated suits; the Counter-Claim brought under the Limitation of Actions Act (Sections 7 and 38) and the then Registered Land Act

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, "Edwin Juma Lumbasi & another v Julius Naibei [2019] KEELC 694 (KLR)", Case Analysis (2019). Bungoma High Court Civil Case No 7 of 2009 (consolidated with Bungoma High Court Civil Case No 76 of 2009 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/694/eng@2019-11-14

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