Domnicus Ojwang Kisiengo v Samwel Odero Obunga [2019] KEELC 2200 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff had acquired title by adverse possession to the suit parcels
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.
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.
Whether the suit parcels were registered in a name other than the plaintiff's
Yes, the land was registered in the name of the defendant, which is a prerequisite for an adverse possession claim.
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LR No. Kanyamwa/Kabonyo/Kwandiku/3218, was registered in the defendant's name under the Registered Land Act (Cap 300, repealed).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.
Legal principles established
#- 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
#- 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.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.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.Costs of the originating summons borne by the defendant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.