Job Ogutu Were & 4 others v Hera Gospel Fellowship Ministry & another [2019] KEELC 1830 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved their claim of adverse possession over the suit land on a balance of probabilities
Yes - the Plaintiffs proved their claim on a balance of probabilities, establishing continuous, exclusive and uninterrupted occupation exceeding 12 years
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.
When the adverse possession commenced
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
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.
Burden of proof under Section 107 of the Evidence Act
The Plaintiffs bore the burden of proving their claim on a balance of probabilities
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.
Legal principles established
#- 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
#- 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.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.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.The 1st Defendant is directed to transfer the suit land to the 5th Plaintiff.
- 5.The Plaintiffs' costs to be met by the Defendants.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.