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ELCPartially AllowedELC Case No. 457 of 2017 (OS) (consolidated with ELC Case No. 458 of 2017 (OS))· [2019] KEELC 1297 (KLR)

William Isaboke Onsare & another v Benjamin Kakiti Kisilu & another [2019] KEELC 1297 (KLR)

Environment and Land Court of Kenya
22 June 2022
5,872 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Two competing originating summonses under Section 38 of the Limitation of Actions Act were consolidated (ELC 457 of 2017 as lead file) in claims for title to LR No. Nyandarua/Kaimbaga/480 (26 hectares) by adverse possession against the registered proprietor, Benjamin Kakuti Kisilu. William Isaboke Onsare claimed he was allotted the plot in 1981, built structures and placed a caretaker, only learning in 2017 that the land had been registered to Kisilu. Mary Wambui Ndungu claimed her late husband, Patrick Ndungu, was allotted parcel 489 in 1982 but was mistakenly shown parcel 480, on which the family settled in 1983/1984, built homes, fenced, cultivated about 45 acres and buried him in 1997. The registered defendant did not defend; service on him was by substitution in the Daily Nation. The court held that adverse possession relief can only issue against the currently registered proprietor, so the 2nd Plaintiff's claim against Onsare and Onyancha failed as mis-joinder, though under Order 1 Rule 9 the misjoinder was not fatal to the suit. Applying Kasuve v Mwaani Investments and Mtana Lewa, the 1st Plaintiff's evidence contradicted his claim of occupation since 1981; his own 2015 ground status report showed minimal occupation, so his possession ran only from about 2015 to 2017 - roughly two years - and his suit was dismissed. The 2nd Plaintiff's open, continuous and uninterrupted occupation since 1983 was uncontroverted and corroborated by Settlement Fund Trustee and chief's letters, photographs and the grave. Judgment was entered for her: a declaration of adverse possession, cancellation of Kisilu's title, dispensation with the original title deed, registration as proprietor, and costs of the suit.

Key legal issues

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01

Elements of adverse possession

Holding

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

Reasoning

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.

p. 6
02

Adverse possession against non-registered proprietors

Holding

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

Reasoning

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.

p. 5
03

Competing adverse possession claims over one parcel

Holding

Where two parties claim adverse possession over the same land, the one who proves the requisite 12-year occupation succeeds against the registered owner

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Dismissal of the 1st Plaintiff William Isaboke Onsare's claim in ELC No. 457 of 2017
  2. 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. 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. 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. 5.Costs of the suit to the 2nd Plaintiff

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13
  • Limitation of Actions Act (Cap 22)Sections 9, 10, 11 and 12
  • Limitation of Actions Act (Cap 22)Section 37
  • Limitation of Actions Act (Cap 22)Section 38
  • Evidence ActSections 107 and 108
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure Rules (2010)Order 1 Rule 9
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 159(1)(d)

Cases cited (7)

  • Githu v Ndeete
    [1984] KLR 776
  • Paul Kamande Gicheha v Jacob Kinyua Kiragu
    [2018] eKLR
  • Titus Kigoro Munyi vs Peter Mburu Kimanui
    [2015] eKLR
  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
  • Mtana Lewa –vs- Kahindi Ngala Mwamgandi
    (2005) eKLR
  • Littledale vs Liverpool College
    (1900)1 Ch.19, 21
  • Kirugi & Another – Vs – Kabiya & 3 Others
    [1987] KLR 347
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

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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, "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.