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ELCAllowedOriginating Summons dated 24th October 2016 (not stated on the judgment face)· [2019] KEELC 831 (KLR)

Clemensia Nyabasamba Moherai (Suing as the legal representative of the Estate of Maria Wankuru Gesongo v Susana Mbusiro Machera [2019] KEELC 831 (KLR)

Environment and Land Court
31 October 2019
GOG. M. A. Ongondo
1,832 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A family that openly lived on and farmed land for over 30 years won ownership, even though the title was registered in someone else's name.

What this practically means

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Executive summary

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This was an originating summons commenced on 24th October 2016 under sections 7 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, in which the plaintiff, suing as the legal representative of her deceased mother, claimed to have acquired title to LR No. Bukira/Buhirimonono/4019 (approximately 62 by 42 feet), a subdivision of LR No. Bukira/Buhirimonono/3114, by adverse possession. She pleaded that her late mother bought the land in 1985 from the defendant's late father-in-law, and that her family had since been in long, open, continuous and uninterrupted occupation, cultivating the land, building a homestead and burying three family members thereon. The defendant opposed the suit through a replying affidavit, asserting that she inherited the properly acquired titles from her deceased mother, that the plaintiff lacked locus standi, and that the suit was incompetent, frivolous and an abuse of process; in submissions she contended the claim was time barred and that a sale agreement is only valid for six months under the Registered Land Act. Adopting the ingredients of adverse possession restated in Wilson Kazungu Katana, the court found that the suit property was registered in the defendant's name (confirmed by official search and the defendant's own admission), that the plaintiff was in open and exclusive possession as proved by photographs, and that occupation since 1985 exceeded twelve years, an admission the defendant made in cross-examination. Relying on Githu v Ndeete, the court held the land was definite and that mere change of ownership could not defeat the claim. Judgment was entered for the plaintiff with a declaration of acquired title by adverse possession, an order compelling the defendant to execute transfer instruments (with the Deputy Registrar empowered to execute in default), and costs to the defendant.

Key legal issues

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01

Whether the suit property is registered in the name of a person other than the applicant

Holding

Yes; the certificate of official search (PExhibit 2) shows the defendant as proprietor with effect from 13th November 2014, and the defendant admitted holding the titles in her name.

Reasoning

PW1 testified that the suit property is registered in the defendant's name, and the official search confirmed the defendant as proprietor from 13th November 2014. The court bore in mind the meaning of 'Proprietor' under section 2 of the Land Registration Act. The defendant's own replying affidavit admitted having properly acquired titles in respect of the suit parcel in her name, and the search (DExh1) disclosed registration under the Registered Land Act (Cap 300 - Repealed).

p. 2
02

Whether the plaintiff was in open, continuous and uninterrupted possession of the suit property for over twelve years

Holding

Yes; the plaintiff proved open and notorious occupation since 1985, a period in excess of twelve years, on a balance of probabilities.

Reasoning

The plaintiff deponed that she and her family had occupied the land openly, continuously and without interruption since 1985, cultivating it, residing there and burying three family members. Photographs (PExh3) proved open and notorious occupation. Critically, the defendant herself admitted in cross-examination that the plaintiff's family had built and lived on the land since 1985, which affirmed the possession and occupation as recognised in the Jaber Ali case.

p. 3
03

Whether the claim for adverse possession is defeated by the subdivision of the original parcel and change of ownership

Holding

No; the suit property was definite (63 feet by 42 feet), and mere change of ownership or subdivision cannot per se defeat a claim for title under adverse possession.

Reasoning

Relying on Githu v Ndeete and Kazungu Katana, the court noted the land in the possession of an adverse possessor must be definite; PW1 gave its measurements as 63 feet by 42 feet. As to the defendant's subdivision of the original parcel in her own favour, Githu v Ndeete established that mere change of ownership of land which is the subject of an adverse possession claim cannot, per se, defeat the claim.

p. 3

Legal principles established

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  • The ingredients of adverse possession are that the land must be registered in the name of a person other than the applicant, the applicant must be in open and exclusive possession adverse to the owner's title, and the occupation must exceed twelve years having dispossessed the owner or following discontinuance of possession by the owner.
  • Possession can take different forms such as fencing and cultivation of the land in dispute.
  • The land in possession of an adverse possessor must be definite.
  • Mere change of ownership of land which is the subject matter of a claim for title under adverse possession cannot per se defeat the claim.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendant in terms of the orders sought in the originating summons dated 24th October 2016
  2. 2.A declaration that the plaintiff and any other person claiming under her by way of adverse possession have acquired title to LR. No. Bukira/Buhirimonono/4019 measuring 63 x 42 feet registered in the name of Susan Mbusiro Machera
  3. 3.The defendant ordered and directed to execute and/or sign all the necessary transfer instruments to facilitate the transfer and registration of the suit property in the name of the plaintiff, and in default the Deputy Registrar granted liberty to execute the transfer instruments in favour of the plaintiff
  4. 4.The costs of the suit to be borne by the defendant

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 13(1)
  • Limitation of Actions Actsection 38(1)
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Rules 2010Order 37 Rule 7
  • Civil Procedure Rules 2010Order 37 Rule 14
  • Constitution of Kenya, 2010Article 60(1)(b)
  • Land Registration Actsection 2
  • Registered Land Act (Cap 300 - Repealed)not specified

Cases cited (6)

  • Jaber Mohsen Ali and another v Pricillah Boit and another
    (2014) eKLR
  • Wilson Kazungu Katana and 101 others v Salim Abdalla Bakshwein and another
    (2015) eKLR
  • Wainaina v Murai and others
    (1976-80) KLR 273 at 289/90
  • Kimani Ruchine and another v Swift Rutherford Company Limited and another
    (1976-80) KLR 1500
  • Titus Ong'ang'a Nyachieo v Martin Okioma Nyauma and 3 others
    (2017) eKLR
  • Githu v Ndeete
    (1984) KLR 776
Jurisdiction invoked
Sections 7 and 38 of the Limitation of Actions Act (Cap 22), section 1A, 1B of the Civil Procedure Act (Cap 21) and 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, "Clemensia Nyabasamba Moherai (Suing as the legal representative of the Estate of Maria Wankuru Gesongo v Susana Mbusiro Machera [2019] KEELC 831 (KLR)", Case Analysis (2019). Originating Summons dated 24th October 2016 (not stated on the judgment face). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/831/eng@2019-10-31

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