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ELCPartially AllowedOriginating Summons dated 16th January 2012 (Court's file number not stated in judgment)· [2019] KEELC 812 (KLR)

Joseph Omburo Opudo v Mark Otieno Okode & another [2019] KEELC 812 (KLR)

Environment and Land Court
8 October 2019
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Migori court handed a family the land they had lived on and farmed for decades, ruling that long, open possession beats a title deed with no sale agreement behind it.

What this practically means

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Executive summary

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The plaintiff, Joseph Omburo Opudo, sued by originating summons under Order 37 Rules 7 and 14 of the Civil Procedure Rules seeking a declaration that he had acquired title to LR No. Gem/Komolo/412 (approximately 4.4 hectares) by adverse possession. He deponed that his late father, Benard Apudo Buong, was registered as proprietor in 1976, that the land was ancestral family land on which he was born in 1975 and still lives, and that the land was irregularly transferred in 1986 to Joshua Okode Aloo, father of the defendants. The defendants denied the claim, asserting their late father purchased the land in 1986, that the plaintiff had no direct right of claim from the estate of Benard Apudo Buong, and that the suit was defective for want of letters of administration ad litem. Okongo J directed that the pleadings be treated as plaint and defence, and Kullow J transferred the suit from Kisii ELC to Migori. At the hearing, DW2 conceded in cross-examination that no document existed between the two deceased men regarding the sale. Applying Sumaria v Allied Industries, the court found no written agreement or consideration for the alleged sale. The defendants admitted the plaintiff built on and cultivated the land. Applying Gatimu Kunguru, Kimani Ruchine and Wilson Kazungu Katana, the court held the plaintiff's possession was open, continuous, exclusive and adverse to the registered owner's title, conferring title by adverse possession. Judgment was entered for the plaintiff with declarations of absolute title and entitlement to registration under section 38 of the Limitation of Actions Act, a permanent injunction, and costs against the defendants.

Key legal issues

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01

Whether the alleged sale of the suit land was supported by a written agreement

Holding

There was no written agreement with any consideration in respect of the alleged sale

Reasoning

DW2 admitted in cross-examination that no document existed between his late father and the plaintiff's late father regarding the sale. Relying on Sumaria v Allied Industries Ltd and the Law of Contract Act as amended by Act No. 21 of 1990, the court found the defendants' claim of a purchase unsupported by any written agreement or consideration.

p. 3
02

Whether the plaintiff proved adverse possession

Holding

The plaintiff proved acquisition of ownership by adverse possession against the defendants jointly and severally

Reasoning

The plaintiff was born in 1975, has lived on the land since, built on it and cultivated it. DW1 and DW2 admitted he built on the land. His possession was open, uninterrupted and adverse to the registered owner's title, with manifest intention to dispossess, satisfying the test in Wilson Kazungu Katana and Gatimu Kunguru.

p. 3
03

Whether the plaintiff was entitled to a permanent injunction

Holding

A permanent injunction was granted under section 13(7)(a) of the Environment and Land Court Act and the plaintiff's rights under Article 40(1) of the Constitution

Reasoning

Having established lawful ownership through adverse possession, the plaintiff was entitled to protection of his property rights under Article 40(1) of the Constitution and to a permanent injunction under section 13(7)(a) of the Environment and Land Court Act, restraining the defendants from evicting or interfering with his possession.

p. 3

Legal principles established

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  • A person asserting adverse possession must prove it, possession may take forms such as fencing or cultivation, and open, uninterrupted and exclusive possession with intention to dispossess the owner confers title by adverse possession

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally
  2. 2.A declaration that the plaintiff has acquired by adverse possession an absolute title to the suit land LR. No. Gem/Komolo/412
  3. 3.A declaration that the plaintiff is entitled to an order under section 38 of the Limitation of Actions Act (Cap 22) to be registered as proprietor of the suit land in place of the defendants
  4. 4.A valid transfer in the plaintiff's favour free from any encumbrances to be executed by the Deputy Registrar of the court
  5. 5.A permanent injunction restraining the defendants, their agents, servants or anybody deriving authority from them from evicting, dispossessing or interfering with the plaintiff's occupation, use and quiet enjoyment of the suit land
  6. 6.The costs of the suit to be borne by the defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rules 7 and 14
  • Law of Contract Actas amended by Act No. 21 of 1990
  • Evidence Act (Cap 80)sections 107 and 108
  • Constitution of Kenya, 2010Article 40(1)
  • Environment and Land Court Actsection 13(7)(a)
  • Limitation of Actions Act (Cap 22)section 38

Cases cited (11)

  • John Imbaize Vodoye –vs- Ann Chebet and another
    (2017) eKLR
  • Samwel Nyandiga Ondiwa –vs- Joash Winyo Ongayo and AFC
    Kisii ELCC No. 115 of 2013
  • Ndatho –vs- Itumo and 2 others
    (2002) eKLR
  • Philip Odhiambo and 3 others –vs- Mathew Ismael Ouma Achieng
    (2015) eKLR
  • Galaxy Paints Company Ltd –vs- Falcon Grounds Limited
    (2000) 2EA
  • Sumaria and another –vs- Allied Industries Ltd
    (2007) 2 KLR
  • Kimani Ruchine and another –vs- Swift Rutherford company Limited and another
    (1976-80) 1KLR 1500
  • Titus Ong'ang'a Nyachieo –vs- Martin Okioma Nyauma and 3 others
    (2017) eKLR
  • Gatimu Kunguru –vs- Muya Gathangi
    (1976-80) 1 KLR 317
  • Wilson Kazungu Katana and 101 others –vs- Salim Abdullah Bakshwein and another
    (2015) eKLR
  • Ahmed Abdulkarim –vs- Member of Lands and Mines
    (1958)EA 436
Jurisdiction invoked
Environment and Land Court Act, 2015 (land and environment disputes); suit commenced under Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010

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, "Joseph Omburo Opudo v Mark Otieno Okode & another [2019] KEELC 812 (KLR)", Case Analysis (2019). Originating Summons dated 16th January 2012 (Court's file number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/812/eng@2019-10-08

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