Edwin Juma Lumbasi & another v Julius Naibei [2019] KEELC 694 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the defendant proved adverse possession of the suit land
The defendant failed to prove adverse possession; his entry was not peaceful and his occupation was disputed from as early as 1998
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.
Validity of the plaintiffs' title and their right to evict
The plaintiffs hold a valid title registered on 25th November 2008, not impeached for fraud, and are entitled to eject trespassers
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.
Whether the 1993 sale agreements founded the defendant's claim
The purported sellers had no interest to transfer since the registered proprietor was not a party to any of the sale agreements
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.
Legal principles established
#- 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
#- 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.The eviction to be carried out by the Court Bailiffs/Auctioneers in accordance with Section 152 of the Land Act
- 3.The defendant's Counter-Claim is dismissed
- 4.The plaintiffs shall have costs of the suit and the dismissed Counter-Claim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.