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ELCDismissedELC Case No. 251 of 2017· [2019] KEELC 703 (KLR)

Teresia Aturwa Atonyi v Fanuel M. Lihanda [2019] KEELC 703 (KLR)

Environment and Land Court
28 November 2019
NMN. A. Matheka
1,723 words in judgment
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The bottom line

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The Kakamega Environment and Land Court dismissed a woman's adverse possession claim, ruling she had voluntarily sold the land and failed to prove 12 years of continuous occupation.

What this practically means

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Executive summary

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The plaintiff brought an originating summons under Order XXXVI Rules 3 and 7 of the Civil Procedure Rules seeking a declaration that she had acquired title to land parcel Isukha/Shitoto/1420, registered in the defendant's name, by adverse possession, together with registration as proprietor and costs. She claimed she bought the land from Petre Atinya in 1969, denied selling it to the defendant, admitted signing transfer documents but said she could not read, and asserted over 12 years of peaceful, continuous occupation. The defendant testified he bought the land from the plaintiff in 1994, obtained land control board consent in 1995, produced the title, transfer, board minutes and green card, and that the plaintiff moved out, was allowed back in 2005 for her husband's memorial and refused to vacate. Three witnesses, including a village elder and the chief, corroborated the sale and departure. The court restated the indefeasibility of registered title under sections 24(a) and 26(1) of the Land Registration Act and the adverse possession principles from Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, including that possession must be nec vi, nec clam, nec precario. The court found the plaintiff untruthful, held she voluntarily sold and transferred the land and returned only later, and that she failed to prove 12 years of exclusive, continuous and uninterrupted possession. The originating summons was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

The claim failed; the plaintiff voluntarily sold and transferred the land to the defendant in 1994 and her possession was not continuous, exclusive and uninterrupted for 12 years

Reasoning

The court applied the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords: dispossession or discontinuance of the owner's possession for 12 years is required, and possession must be open, peaceful and without the owner's permission. The defendant produced the title, transfer, land control board consent and green card, and three witnesses (a neighbour, an elder and the chief) corroborated that the plaintiff sold the land in 1994, moved out, and only returned in 2005 for her husband's memorial and refused to vacate. The court disbelieved the plaintiff.

p. 3
02

Indefeasibility of the defendant's registered title

Holding

The defendant, as registered proprietor, held an indefeasible title under sections 24(a) and 26(1) of the Land Registration Act, unimpaired by the plaintiff's claim

Reasoning

The court recited section 24(a) vesting absolute ownership in the registered proprietor and section 26(1) making the certificate of title prima facie evidence of absolute and indefeasible ownership, subject only to challenge on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such ground was proved against the defendant.

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 party, or where acquired illegally, unprocedurally or through a corrupt scheme
  • A claimant in adverse possession must prove possession that is nec vi, nec clam, nec precario - without force, secrecy or permission - for the statutory period of 12 years

Court orders

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  1. 1.The originating summons for adverse possession is dismissed
  2. 2.The plaintiff is condemned to pay the costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder XXXVI Rules 3 and 7
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actprovisions on adverse possession

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
Order XXXVI Rule 3 and 7 of the Civil Procedure Rules

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, "Teresia Aturwa Atonyi v Fanuel M. Lihanda [2019] KEELC 703 (KLR)", Case Analysis (2019). ELC Case No. 251 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/703/eng@2019-11-28

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