Paul Ochwachi Ouma v Ohongo Ochaye Naluo (Administrator of the Estate of the Late Ochaye Odwoli) & 2 others [2019] KEELC 1824 (KLR)
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
#Key legal issues
#Whether the Plaintiff proved open, notorious and exclusive possession for over 12 years
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
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.
Whether the Plaintiff's entry and occupation was permissive rather than adverse
The Plaintiff's entry was permissive, which negates adverse possession
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.
Whether the 12-year limitation period had run against the 3rd Defendant in respect of BUNYALA/BUKOMA/656
The statutory 12-year period had not been attained against the 3rd Defendant, who was registered on 10th August 2010
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.
Whether the Plaintiff discharged the burden of proving a claim of right over land registered to others during 1972 adjudication
The Plaintiff failed to prove any colour of right or title to the properties
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.
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.The Plaintiff's Originating Summons seeking title by adverse possession to L.R Nos BUNYALA/BUKOMA/647 and BUNYALA/BUKOMA/656 is dismissed
- 2.Costs of the suit awarded to the Defendants
- 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.