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ELCDismissedELC No. 102 of 2014 (Formerly HCC No. 33/2012)· [2019] KEELC 2249 (KLR)

Hendrika Mwambo v Paul Okello Gaunya [2019] KEELC 2249 (KLR)

Environment and Land Court (High Court of Kenya)
30 July 2019
AKA. K. Kaniaru
1,898 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 (amended 21/3/2018) claiming ownership of land parcels Bunyala/Bulemia/549 and 841 by adverse possession. The Defendant, the registered owner since 27/11/1990 (gifted by his late father), opposed the claim. The Plaintiff's case was that her late father and the Defendant's late father were brothers, and that her family had occupied and cultivated the disputed parcels for over 30 years under an understanding that they belonged to her late father's family, who pre-deceased the Defendant's father. After the Defendant's father's death, the Defendant in 2010 stopped the Plaintiff from using the land, prompting a search that revealed the Defendant's registration. The Defendant denied the claim, said the Plaintiff lost a past dispute over the land, pleaded res judicata, and asserted the Plaintiff's mother used the land only with his permission. He testified that the Plaintiff was not in occupation. The court found the Plaintiff's case weak on two fronts: she did not controvert the Defendant's averment of permissive use by her mother, and adverse possession is inconsistent with permissive use; and she failed to clarify when time for adverse possession began to run, particularly whether her claim accrued only after her mother's death in 2007. Drawing on the characterisation of adverse possession in Rumtomji's Law of Limitation and Adverse Possession, the court held that the Plaintiff proved duration and exclusivity but not the hostile, open, notorious and continuous character of her possession. Trust was mentioned but not pursued. The court declined to determine any issue in the Plaintiff's favour and dismissed the suit, ordering each side to bear its own costs given the delicate family nature of the dispute.

Key legal issues

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01

Whether the Plaintiff proved adverse possession of the suit parcels

Holding

No; the Plaintiff failed to prove the true adverse character of her possession and did not demonstrate when time began to run, so the claim was dismissed

Reasoning

Although possession spanned over 30 years, the major part comprised use and cultivation with the Plaintiff's late mother, possibly permissive through her mother's rights. The Defendant's averment that the mother asked permission to use the land was not controverted by the Plaintiff's counsel. The Plaintiff emphasised exclusivity and duration but not hostility, openness, notoriety and claim of title. She also did not clarify when, if at all, her adverse possession accrued after her mother's death in 2007. Trust was mentioned but not pursued.

p. 3
02

Whether the Defendant's title was extinguished and the Plaintiff acquired title

Holding

No; no issue was determined in the Plaintiff's favour and the Defendant remained the registered owner

Reasoning

The court declined to determine any of the issues in the Plaintiff's favour since she failed to prove facts sufficient to sustain a claim of adverse possession or extinguishment of the Defendant's title.

p. 3

Legal principles established

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  • Adverse possession is possession that is hostile, under a claim or colour of title, actual, open, un-interrupted, notorious, exclusive and continuous; continued for 12 years it confers an indefeasible title
  • The adverse character of possession must be proved as a fact and cannot be assumed from mere exclusive possession however long continued
  • Adverse possession is always inconsistent with permissive use of the land

Court orders

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  1. 1.The Plaintiff's case is dismissed
  2. 2.Each side to bear its own costs

Authorities

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Cases cited (1)

  • Kweyu v Omuto, CA Civil Appeal No. 8 of 1990
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution

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, "Hendrika Mwambo v Paul Okello Gaunya [2019] KEELC 2249 (KLR)", Case Analysis (2019). ELC No. 102 of 2014 (Formerly HCC No. 33/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2249/eng@2019-07-30

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