William Isaboke Onsare & another v Benjamin Kakiti Kisilu & another [2019] KEELC 1297 (KLR)
The bottom line
#The Environment and Land Court in Nyahururu awarded land title to a woman who occupied it openly since 1983, dismissing a rival claimant who couldn't prove 12 years' possession.
What this practically means
#Executive summary
#Key legal issues
#Elements of adverse possession
The claimant must prove exclusive, open, uninterrupted possession for 12 years, dispossessing the owner or with the owner having discontinued possession, done inconsistently with the owner's enjoyment of the land
The court relied on Kasuve v Mwaani Investments and Mtana Lewa v Kahindi Ngala Mwamgandi. The claimant bears the burden of proving the 12-year period, that possession was without the true owner's permission, and acts inconsistent with the owner's enjoyment of the soil (Littledale v Liverpool College). The 1st Plaintiff's occupation was found to have run only from about 2015 to 2017.
Adverse possession against non-registered proprietors
Relief by adverse possession cannot be granted against a person who is not the registered proprietor; such parties are mis-joined, though misjoinder does not defeat the suit
The court held that Section 38 relief lies against the registered owner only. The suit in ELC 458 against the 1st Plaintiff and Benedict Onyancha failed on that ground, but under Order 1 Rule 9 of the Civil Procedure Rules the court dealt with the controversy as between the parties properly before it, namely the competing claimants and the registered owner.
Competing adverse possession claims over one parcel
Where two parties claim adverse possession over the same land, the one who proves the requisite 12-year occupation succeeds against the registered owner
The court consolidated two competing originating summonses and assessed each claimant's evidence separately. The 1st Plaintiff's own ground status report contradicted his assertion of occupation since 1981, showing occupation only from 1994 with minimal developments. The 2nd Plaintiff's occupation since 1983/1984 was uncontroverted, corroborated by letters from the Settlement Fund Trustee, the area chief, photographs and the grave of her husband buried on the land.
Legal principles established
#- A claimant seeking title by adverse possession must prove exclusive, open and uninterrupted possession for 12 years, either after dispossessing the owner or where the owner discontinued possession on his own volition
- An order for adverse possession can only be made against the currently registered proprietor of the land
- The burden of proving a claim for adverse possession lies on the claimant on a balance of probabilities, even where the suit proceeds by formal proof
Court orders
#- 1.Dismissal of the 1st Plaintiff William Isaboke Onsare's claim in ELC No. 457 of 2017
- 2.A declaration that the 2nd Plaintiff Mary Wambui Ndungu has acquired title by adverse possession over L.R No. Nyandarua/Kaimbaga/480 measuring 26 hectares
- 3.The County Land Registrar Nyandarua to cancel the title to LR No. Nyandarua/Kaimbaga/480 in the name of Benjamin Kakuti Kisilu and to dispense with production of the original title deed while transferring the land to the 2nd Plaintiff
- 4.An order that the 2nd Plaintiff be registered by the Nyandarua Land Registrar as the proprietor of LR No. Nyandarua/Kaimbaga/480 in place of Benjamin Kakuti Kisilu
- 5.Costs of the suit to the 2nd Plaintiff
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22); Article 159(1)(d) of the Constitution; Sections 1A and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Isaboke Onsare & another v Benjamin Kakiti Kisilu & another [2019] KEELC 1297 (KLR)", Case Analysis (2022). ELC Case No. 457 of 2017 (OS) (consolidated with ELC Case No. 458 of 2017 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1297/eng@2019-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.