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ELCAllowedOriginating Summons dated 1st August 2017 (Migori)· [2019] KEELC 2200 (KLR)

Domnicus Ojwang Kisiengo v Samwel Odero Obunga [2019] KEELC 2200 (KLR)

Environment and Land Court
24 June 2019
1,268 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Migori court handed a man ownership of land he had openly occupied since 1969, ruling his unbroken possession beat the registered owner's title.

What this practically means

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Executive summary

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The plaintiff, Dominicus Ojwang Kisiengo, sued by originating summons under Order 37 Rule 7 of the Civil Procedure Rules and section 38 of the Limitation of Actions Act, claiming that by virtue of continuous, quiet and uninterrupted occupation of land parcels Kanyamwa/Kabonyo/Kwandiku/2903 and 3218 since 1969, he had acquired prescriptive title by adverse possession. He sought declarations of adverse possession and an order compelling the Land Registrar to delete the defendant's name from parcel 3218 and register him absolutely. The defendant, who appeared in person, denied the claim as false, contending the plaintiff owned a different parcel which he had sold and transferred, and that the suit land was inheritance from his late father. He filed no submissions. The court, Ongondo J, framed the issues of quiet, continuous and uninterrupted possession and whether title by adverse possession had been acquired. Relying on Maweu v Liu, Wanyoike Gathure v Beverly, Gatimu Kinguru v Muya Gathangi, Wilson Kazungu Katana and Abdukadir Abdikadir, the court found the plaintiff's open and notorious possession unbroken since 1969, the certificates of search confirming registration in the defendant's name, and the defendant's response a mere denial. Judgment was entered for the plaintiff on a balance of probabilities in terms of prayers 1 to 4 of the originating summons, including costs, on 24th June 2019 at Migori.

Key legal issues

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01

Whether the plaintiff had acquired title by adverse possession to the suit parcels

Holding

Yes. The plaintiff had open, quiet, continuous and uninterrupted possession since 1969; his evidence stood uncontroverted and the defendant's response was a mere denial.

Reasoning

The plaintiff averred he was born in 1969 and had known no other home than the homestead on the suit parcel. The certificates of search (P Exhibits 1-3) showed registration in the defendant's name while the plaintiff remained in occupation. The defendant's replying affidavit merely denied the claim and his own exhibit (D Exhibit 1, LR 2905) corroborated the subdivision yielding the suit parcels. Applying Maweu, Gatimu Kinguru and Wilson Kazungu Katana, the elements of adverse possession were proved on a balance of probabilities.

p. 2
02

Whether the suit parcels were registered in a name other than the plaintiff's

Holding

Yes, the land was registered in the name of the defendant, which is a prerequisite for an adverse possession claim.

Reasoning

P Exhibit 1, a certificate of search, showed that on 19th November 2014 the suit land, a subdivision of LR No. Kanyamwa/Kabonyo/Kwandiku/3218, was registered in the defendant's name under the Registered Land Act (Cap 300, repealed). The defendant's assertion that the land was registered in his late father's name was contradicted by his own documentary position, so the plaintiff's claim was not misleading.

p. 2

Legal principles established

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  • A party in open and notorious possession of land, whose possession is not broken or interrupted, acquires title by adverse possession
  • A bare denial by a defendant does not displace a plaintiff's adverse possession claim proved on a balance of probabilities

Court orders

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  1. 1.A declaration that the plaintiff, having been in continuous and uninterrupted occupation of land parcel number Kanyamwa/Kabonyo/Kwandiku/2903, has acquired a prescriptive right to the title thereto by adverse possession
  2. 2.A declaration that the plaintiff, having been in continuous and uninterrupted occupation of land parcel number Kanyamwa/Kabonyo/Kwandiku/3218, has acquired a prescriptive right to the title thereto by adverse possession
  3. 3.An order that the Land Registrar delete the name of the defendant from parcel No. Kanyamwa/Kabonyo/Kwandiku/3218 and register the plaintiff as proprietor thereof absolutely
  4. 4.Costs of the originating summons borne by the defendant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 37 Rule 7
  • Civil Procedure ActSection 3A
  • Limitation of Actions Act (Cap 22)Sections 38(1), (2) and (4)
  • Registered Land Act (Cap 300, repealed)-
  • Land Registration ActSection 2 (definition of proprietor)

Cases cited (7)

  • Maweu -vs- Liu Raveling and Faring Cooperation Society
    (1985) KLR 430
  • James Maina Kinya -vs- Gerald Kwendaka
    (2018) eKLR
  • Great Lakes Company (U) Limited -vs- Kenya Revenue Authority
    (2009) KLR 720
  • Wilson Kazungu Katana and 101 others -vs- Salim Abdallah Bakshwein and another
    (2015) eKLR
  • Wanyoike Gathure -vs- Beverly
    (1965) EA 514
  • Gatimu Kinguru -vs- Muya Gathangi
    (1976-80) 1 KLR 317
  • Abdukadir Abdikadir -vs- Member for Lands and Mines
    (1958) EA 436
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules 2010, section 3A of the Civil Procedure Act and sections 38(1),(2) and (4) 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, "Domnicus Ojwang Kisiengo v Samwel Odero Obunga [2019] KEELC 2200 (KLR)", Case Analysis (2019). Originating Summons dated 1st August 2017 (Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2200/eng@2019-06-24

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