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ELCAllowedELC Case No. 879 of 2015 (Formerly H.C.C.C. No. 114 of 2011 (O.S))· [2019] KEELC 1830 (KLR)

Job Ogutu Were & 4 others v Hera Gospel Fellowship Ministry & another [2019] KEELC 1830 (KLR)

Environment and Land Court
5 September 2019
2,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kisumu court ruled that a church that occupied land openly for over 12 years legally owns it, overriding the registered owner's title.

What this practically means

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Executive summary

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The Plaintiffs, members of the Holy Trinity Church in Africa, brought an originating summons under Sections 7, 17 and 38 of the Limitation of Actions Act and the (now repealed) Registered Land Act seeking to be declared owners of Suna East/Wasweta 1/13103 by adverse possession. They claimed the 5th Plaintiff bought a portion of Suna East/Wasweta 1/100 in 1987, took possession, built a church and pastor's house, and had used the land every Sunday since 1987. The Defendants denied the purchase, asserting that the 2nd Defendant bought the land himself and only permitted the Plaintiffs to use a nursery school structure on Sundays; the 1st Defendant claimed to have purchased the parcel from the 2nd Defendant in 2005 and to be in occupation. The court framed five issues, including the nature of the Plaintiffs' occupation, when it commenced, whether it was adverse, and whether title had been acquired. Relying on green card evidence, the court traced the suit parcel's history and found inconsistencies in the Defendants' account. It held that the 5th Plaintiff had been in continuous, exclusive and uninterrupted occupation from about 1990, initially permissively under the vendor, and adversely from 6th December 1995 when title passed to the 2nd Defendant. Twelve years expired on 6th December 2007, extinguishing the Defendants' title. Judgment was entered for the Plaintiffs: the 5th Plaintiff was declared entitled to the whole parcel, the Defendants were declared to hold it in trust, and the 1st Defendant was directed to transfer the land. The Defendants were ordered to pay the Plaintiffs' costs.

Key legal issues

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01

Whether the Plaintiffs proved their claim of adverse possession over the suit land on a balance of probabilities

Holding

Yes - the Plaintiffs proved their claim on a balance of probabilities, establishing continuous, exclusive and uninterrupted occupation exceeding 12 years

Reasoning

The court found that the 5th Plaintiff had been in occupation of the land from about 1990 to date, that occupation was with permission of the vendor Janes Odero Ajiki, and became adverse when the title was transferred to the 2nd Defendant on 6th December 1995. Twelve years expired on or about 6th December 2007, by which time the Defendants' title was extinguished by operation of law.

p. 4
02

When the adverse possession commenced

Holding

Adverse possession commenced on 6th December 1995 when the title to Suna East/Wasweta 1/8822 was passed to the 2nd Defendant, and expired 12 years later on 6th December 2007

Reasoning

The court traced the history of the suit land from the original parcel through successive subdivisions to Suna East/Wasweta 1/13103. The 5th Plaintiff's occupation was initially with the permission of the late vendor Janes Odero Ajiki; it became adverse to the registered proprietor when title was transferred to the 2nd Defendant. The transfer by the 2nd Defendant to the 1st Defendant did not interrupt the Plaintiffs' continuous occupation.

p. 4
03

Burden of proof under Section 107 of the Evidence Act

Holding

The Plaintiffs bore the burden of proving their claim on a balance of probabilities

Reasoning

The court noted that the 2nd Defendant denied the Plaintiffs' claim of purchase, and the Plaintiffs therefore had a duty under Section 107 of the Evidence Act to prove their claim on a balance of probabilities. The court examined the documentary evidence including the green card/register and the sale agreement to determine whether this burden was discharged.

p. 3

Legal principles established

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  • A person in continuous, exclusive and uninterrupted occupation of land for over 12 years adverse to the title of the registered proprietor acquires title by adverse possession, and the registered proprietor's title is extinguished.

Court orders

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  1. 1.The 5th Plaintiff is entitled to the whole of Suna East/Wasweta 1/13103 by reason of their being in adverse possession of the same for a period exceeding twelve (12) years.
  2. 2.The Defendants' proprietary interests over the said land have been extinguished since 6th December 2007 by virtue of the 5th Plaintiff's adverse possession.
  3. 3.The Defendants have since 6th December 2007 been holding the title of the suit land in trust for the 5th Plaintiff, and the title of the said land should now be transferred to the 5th Plaintiff.
  4. 4.The 1st Defendant is directed to transfer the suit land to the 5th Plaintiff.
  5. 5.The Plaintiffs' costs to be met by the Defendants.

Authorities

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Legislation

  • Registered Land ActCap 300 (now repealed)
  • Limitation of Actions ActSections 7, 17, 38
  • Evidence ActSection 107
  • Civil Procedure ActSection 27
Jurisdiction invoked
Articles of the Registered Land Act Cap 300 (now repealed) and Sections 7, 17, 38 of the Limitation of Actions Act Cap 22, Laws of Kenya

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, "Job Ogutu Were & 4 others v Hera Gospel Fellowship Ministry & another [2019] KEELC 1830 (KLR)", Case Analysis (2019). ELC Case No. 879 of 2015 (Formerly H.C.C.C. No. 114 of 2011 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1830/eng@2019-09-05

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