Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedOriginating Summons dated 11th September 2013· [2019] KEELC 876 (KLR)

Susliah Atieno Were & another (Suing as the legal Administratix of George Were Ochich, Deceased v Harison Obade Odango & another [2019] KEELC 876 (KLR)

Environment and Land Court
16 October 2019
1,898 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court granted a family ownership of land they had occupied openly for 28 years, proving that long, uncontested occupation can defeat a registered title.

What this practically means

#

Executive summary

#
By an originating summons dated 11th September 2013 under Order 37 Rules 7 and 14 of the Civil Procedure Rules and section 38 of the Limitation of Actions Act, Susliah Atieno Were and Herine Akinyi Were, as legal administratrix of the estate of George Were Ochich (deceased), claimed LR No. Central Kasipul/Kamuma/6241 by adverse possession against Harison Obade Ondago and John Ogweno Obade. The suit land was a subdivision of LR No. Central Kasipul/Kamuma/1406. The plaintiffs asserted that their late husband bought the land from the 1st defendant in November 1985, that their homesteads fell on the suit parcel after the 2013 subdivision, and that they had occupied it openly, peacefully and continuously for over 28 years. The defendants entered appearance but filed no replying affidavit; the suit, transferred from Kisii to the Migori Environment and Land Court, proceeded to formal proof. PW1 and PW2 testified to long, unchallenged occupation, including burial of their husband on the land. Guided by Galaxy Paints v Falcon Grounds on framing issues and applying Kazungu Katana on the prerequisites of adverse possession, the court found open, exclusive and adverse possession exceeding twelve years. Relying on Kirugi v Kabiya, it held the burden of proof on a balance of probabilities undiminished by formal proof, and found the plaintiffs' case firm and cogent. Judgment was entered for the plaintiffs in terms of orders (1) to (5) of the originating summons, including registration of the plaintiffs as proprietors, execution of transfer instruments by the Deputy Registrar/Executive Officer, a permanent injunction against the defendants, and costs borne by the defendants.

Key legal issues

#
01

Acquisition of title by adverse possession under section 38 of the Limitation of Actions Act and section 28(h) of the Land Registration Act

Holding

The plaintiffs proved open, peaceful, continuous and uninterrupted occupation of the suit land for over 28 years following entry pursuant to a sale agreement in November 1985, extinguishing the defendants' title

Reasoning

The court found that the plaintiffs' husband purchased the land from the 1st defendant in November 1985 and entered possession. PW1 and PW2 testified to continuous occupation, with the homesteads falling on the suit parcel after subdivision. Their occupation was adverse to the registered proprietors after the lapse of the agreed period. The case being unchallenged, the claim was proved on a balance of probabilities notwithstanding formal proof.

p. 3
02

Burden of proof in an unchallenged suit heard by formal proof

Holding

The plaintiff still bears the burden of proving the case on a balance of probabilities, which is not lessened by formal proof

Reasoning

Relying on Kirugi v Kabiya, the court held that even where the defendants did not respond or attend, the plaintiffs' evidence had to establish the claim. The court evaluated the testimonies of PW1 and PW2 and the exhibits and found the evidence firm and cogent, satisfying the burden before granting the reliefs sought.

p. 3
03

Entitlement to a permanent injunction restraining interference with possession

Holding

A permanent injunction issues restraining the defendants from interfering with the plaintiffs' possession of the suit land

Reasoning

Order 3 of the originating summons sought restraint against the defendants, which the court treated as injunctive relief. Noting that injunctions rest on three sequential conditions and that the court is empowered under section 13(7)(a) of the Environment and Land Court Act to grant preservation orders including permanent injunctions, and having found established adverse possession, the court granted the permanent injunction.

p. 3

Legal principles established

#
  • A plaintiff's adverse possession claim must be proved on a balance of probabilities, and the burden is not lessened where the case proceeds by formal proof
  • An adverse possession claimant must be in open and exclusive possession of the land in an adverse manner to the title of the registered owner for over twelve years
  • The issues for determination in a suit are derived from the pleadings and the originating summons
  • An injunction, whether interlocutory or permanent, is anchored on three conditions to be surmounted sequentially

Court orders

#
  1. 1.A declaration that the defendants' right to recover LR No. Central Kasipul/Kamuma/6241 is barred under the Limitation of Actions Act and their title extinguished
  2. 2.An order that the plaintiffs be registered as proprietors of LR No. Central Kasipul/Kamuma/6241 jointly as legal administratrix of the estate of George Were Ochich, in place of the 2nd defendant
  3. 3.A permanent injunction restraining the defendants, their agents, servants and/or employees from interfering with the plaintiffs' peaceful possession and occupation of LR No. Central Kasipul/Kamuma/6241
  4. 4.The Deputy Registrar and/or Executive Officer of the High Court to execute transfer instruments and attendant documents to facilitate transfer and registration of the suit land in favour of the plaintiffs
  5. 5.Costs of the originating summons to be borne by the defendants

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 37 Rules 7 and 14
  • Limitation of Actions Act (Cap 22)section 38
  • Land Registration Actsections 2, 24, 25, 26 and 28(h)
  • Registered Land Act (Cap 300) (repealed)section 37
  • Environment and Land Court Act, 2015section 13(7)(a)

Cases cited (10)

  • Githu -vs- Ndeete
    (1984) KLR 775
  • Gatimu Kinguru -vs- Muya Gathangi
    (1976) KLR 253
  • Galaxy Paints Co Ltd v Falcon Grounds Ltd
    (2000) 2 EA 385
  • Wilson Kazungu Katana and 101 others -vs- Salim Abdalla Bakshwein and another
    (2015) eKLR
  • Wainaina v Murai and others
    (1976-80) KLR 283
  • Kenya Commercial Finance Co Ltd -vs- Afraha Education Society
    (2001) volume 1 EA 86
  • Nguruman Limited v Jan Bonde Nielsen and 2 others
    (2014) eKLR
  • National Bank of Kenya Ltd -vs- Shinners Plaza Ltd
    (2009) KLR 278
  • Kirugi and another v Kabiya and 3 others
    (1987) KLR 347
  • Ahmed Abdulkarim -vs- Member for Lands and Mines
    (1958) EA 436
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2015 (suit transferred from Kisii Environment and Land Court); claim brought under Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010 and section 38 of the Limitation of Actions Act (Cap 22)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Susliah Atieno Were & another (Suing as the legal Administratix of George Were Ochich, Deceased v Harison Obade Odango & another [2019] KEELC 876 (KLR)", Case Analysis (2019). Originating Summons dated 11th September 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/876/eng@2019-10-16

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