Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 17th June 2014 (amended 15th February 2017)· [2019] KEELC 1824 (KLR)

Paul Ochwachi Ouma v Ohongo Ochaye Naluo (Administrator of the Estate of the Late Ochaye Odwoli) & 2 others [2019] KEELC 1824 (KLR)

Environment and Land Court
12 September 2019
2,438 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Busia Environment and Land Court dismissed a man's 2014 adverse possession land claim because his occupation was with permission, shared with others, and shorter than 12 years against one owner.

What this practically means

#

Executive summary

#
The Plaintiff, Paul Ochwachi Ouma, sued the three Defendants by Originating Summons claiming ownership of L.R Nos BUNYALA/BUKOMA/647 and BUNYALA/BUKOMA/656 by adverse possession, asserting residence thereon with his family since 1943 and seeking cancellation of the Defendants' titles, registration in his name, execution of transfer documents and a permanent injunction. The Defendants, through a Replying Affidavit sworn by the 3rd Defendant, denied the claim, contending the Plaintiff forceably entered parcel 647 as an orphan, litigated and lost before the land tribunals, the High Court appeal and succession proceedings, and had never occupied parcel 656. At the hearing the Plaintiff was the sole witness; three defence witnesses testified. The court, applying Sections 13 and 38 of the Limitation of Actions Act and authorities including Kweyu v Omuto and Wines & Spirits Kenya Limited v Mwango, held that the burden lay on the Plaintiff to prove continuous, exclusive possession as of right. The Plaintiff admitted the parcels were registered to the Defendants' grandfathers during the 1972 adjudication, that his father owned parcel 802, and that his entry onto parcel 647 was with the owners' permission to run a kiosk and eatery - permissive use negating adverse possession. He occupied less than an acre of parcel 647 alongside the 1st Defendant and other families, so possession was not exclusive, and never occupied parcel 656, against which the 12-year period had not run since the 3rd Defendant's registration on 10th August 2010. The Originating Summons was dismissed with costs to the Defendants.

Key legal issues

#
01

Whether the Plaintiff proved open, notorious and exclusive possession for over 12 years

Holding

The Plaintiff failed to prove exclusive possession; he lived on a portion of BUNYALA/BUKOMA/647 together with the 1st Defendant and other families and never occupied BUNYALA/BUKOMA/656

Reasoning

The Plaintiff was the sole witness. His own testimony and that of the defence witnesses showed he occupied less than one acre of parcel 647 together with the registered owner and others, and had no possession of parcel 656. He could not delineate the dimensions he occupied, defeating exclusivity and notorious possession required for adverse possession.

p. 3
02

Whether the Plaintiff's entry and occupation was permissive rather than adverse

Holding

The Plaintiff's entry was permissive, which negates adverse possession

Reasoning

The Plaintiff admitted he entered with the permission of the registered owners, OKELLO ODUOLI and AGUNDA WERE, to operate an eatery. Consistent with Ramco Investment Limited v Uni-Drive Theatre Limited, a person occupying with consent is not in adverse possession and must show when permissive possession turned adverse, which the Plaintiff failed to do.

p. 3
03

Whether the 12-year limitation period had run against the 3rd Defendant in respect of BUNYALA/BUKOMA/656

Holding

The statutory 12-year period had not been attained against the 3rd Defendant, who was registered on 10th August 2010

Reasoning

The Certificate of Official Search showed the 3rd Defendant became registered proprietor of parcel 656 on 10th August 2010, and the suit was instituted in 2014 against him in his own right, not as personal representative. Fewer than 12 years had elapsed, so no title by adverse possession could have accrued against him.

p. 3
04

Whether the Plaintiff discharged the burden of proving a claim of right over land registered to others during 1972 adjudication

Holding

The Plaintiff failed to prove any colour of right or title to the properties

Reasoning

The Plaintiff admitted the properties were registered in the names of the Defendants' grandfathers during the 1972 adjudication while he was an adult supposedly living there, and that his own father's parcel was BUNYALA/BUKOMA/802. He adduced no evidence of colour of right or good-faith title, undermining his adverse possession claim.

p. 3

Legal principles established

#
  • The burden lies on the person claiming adverse possession to prove occupation that is nec vi, nec clam, nec precario, continuous and with the owner's knowledge
  • Adverse character of possession must be proved as a fact and cannot be assumed from mere exclusive possession; it must rest on de facto use and occupation under a claim of right hostile to the true owner
  • Permissive entry onto land negates adverse possession; the claimant must show when possession ceased to be permissive and became adverse

Court orders

#
  1. 1.The Plaintiff's Originating Summons seeking title by adverse possession to L.R Nos BUNYALA/BUKOMA/647 and BUNYALA/BUKOMA/656 is dismissed
  2. 2.Costs of the suit awarded to the Defendants

Authorities

#

Legislation

  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 38

Cases cited (5)

  • Kweyu vs Omuto
    (1990) KLR 709
  • Gabriel Mbui vs Mukindia Maranya
    (1993) eKLR
  • Wines & Spirits Kenya Limited & another Vs George Mwachiru Mwango
    [2018] eKLR
  • Wanyoike Gathure Vs Berverly
    (1965) EA 514
  • Ramco Investment Limited Vs Uni-Drive Theatre Limited
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under a claim for adverse possession by Originating Summons

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Paul Ochwachi Ouma v Ohongo Ochaye Naluo (Administrator of the Estate of the Late Ochaye Odwoli) & 2 others [2019] KEELC 1824 (KLR)", Case Analysis (2019). Originating Summons dated 17th June 2014 (amended 15th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1824/eng@2019-09-12

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