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ELCAllowedOriginating Summons dated 21st August 2012 (Migori)· [2019] KEELC 1930 (KLR)

Edward Okode Aluoch v Leonida Orwa Oindo & another [2019] KEELC 1930 (KLR)

Environment and Land Court
24 June 2019
1,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff filed an originating summons dated 21st August 2012 under Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act, claiming title by adverse possession to a portion measuring 2 hectares of LR No. Kamagambo/Kanyajuok/741, registered in the name of Andrea Oindo Milonde (deceased). He sought a declaration that the deceased's and defendants' rights to recover the portion were barred and extinguished after over 35 years of open, peaceful and continuous occupation, an order that he be registered as proprietor of the portion in place of the deceased, and an injunction restraining interference with his possession. The defendants, served on several occasions between 2014 and 2018 as shown in affidavits of service, neither entered appearance nor filed a reply; their case was deemed closed on 25th February 2019 and the suit proceeded by viva voce evidence of PW1, Thomas Wasonga Okode, son and attorney of the plaintiff. Counsel filed submissions relying on three authorities on adverse possession. The court, applying Wilson Kazungu Katana, set out the elements of adverse possession: registration of the land in a name other than the applicant; open and exclusive possession adverse to the owner's title; and occupation exceeding twelve years. It found the land registered in the deceased's name under the repealed Registered Land Act, the occupation uncontroverted, and the claim proved on a balance of probabilities, noting that the burden of proof is not lessened even in formal proof. Judgment was entered for the plaintiff against the defendants jointly and severally in terms of orders (1) to (4) of the originating summons. No separate costs order appears in the judgment.

Key legal issues

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01

Whether the plaintiff established adverse possession over 2 hectares of LR No. Kamagambo/Kanyajuok/741

Holding

The claim was proved on a balance of probabilities; the plaintiff's rights of the registered owner were extinguished by effluxion of time

Reasoning

The suit land was registered in the name of the deceased under the repealed Registered Land Act. The plaintiff testified, through uncontroverted evidence, that he had openly, peacefully and continuously occupied and cultivated the defined 2-hectare portion for over 35 years, well in excess of the 12-year limitation period, adversely to the deceased and the defendants. The defendants neither entered appearance nor filed a defence, and the burden on the plaintiff, even in formal proof, was discharged.

p. 2
02

Whether the claim could lie over a portion rather than the whole parcel

Holding

Yes - adverse possession may be established over a defined portion of land

Reasoning

Relying on Muthuita v Wanoe, which applied Gatimu Kinguru v Muya Gathangi, the court held that adverse possession must be of the whole or a defined portion. PW1 clearly identified and claimed a defined portion measuring two hectares of the suit land, satisfying this requirement.

Legal principles established

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  • Adverse possession requires that the land in dispute be registered in the name of a person other than the applicant
  • The applicant must be in open and exclusive possession of the land in a manner adverse to the title of the owner
  • Occupation must exceed twelve years having dispossessed or discontinued the owner's possession
  • Adverse possession must be of the whole or a defined portion of land
  • The burden of proof remains on the plaintiff even where the case proceeds by way of formal proof

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally in terms of orders (1) to (4) sought on the face of the originating summons dated 21st August 2012

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rules 7 and 14
  • Limitation of Actions ActSection 38
  • Land Registration Act, No. 3 of 2012Sections 2 and 28(h)
  • Registered Land Act (Cap 300) (repealed)Not specified

Cases cited (9)

  • Njuguna Ndatho vs Masai Itumo Mateo and Nguli Kyalo
    Civil Appeal No. 231 of 1999 at Nakuru
  • Githu vs Ndeete
    (1984) KLR 776
  • Wanjiku Kinuthia and another vs Stephen Kinoro Kamau & another
    Nairobi HCCC No. 2360 of 1995
  • Wilson Kazungu Katana and 101 others vs Salim Abdallah Bakshwein and another
    (2015) eKLR
  • Wainaina vs Murai and others
    (1976-80) I KLR 283
  • Muthuita vs Wanoe and 2 others
    (2008) 1 KLR (G&F) 1024
  • Gatimu Kinguru vs Muya Gathangi
    (1976) KLR 253
  • Kirugi & another vs Kabiya & 3 others
    (1987) KLR 347
  • Ahmed Abdulkarim vs Member for Lands and Mines
    (1958) EA 436
Jurisdiction invoked
Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act (Cap 22)

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, "Edward Okode Aluoch v Leonida Orwa Oindo & another [2019] KEELC 1930 (KLR)", Case Analysis (2019). Originating Summons dated 21st August 2012 (Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1930/eng@2019-06-24

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