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ELCDismissedELC Case No. 289 of 2014· [2019] KEELC 2511 (KLR)

Gregory Mwamwee Wafula v Fredrick Amweya Chebii & 2 others [2019] KEELC 2511 (KLR)

Environment and Land Court
3 July 2019
NMN.A. Matheka
2,118 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a man's claim to 2 acres because he couldn't prove he occupied the land openly and continuously for 12 years.

What this practically means

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Executive summary

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The plaintiff sued the 1st and 2nd defendants and the 3rd defendant in the Environment and Land Court at Kakamega, claiming 2 acres formerly comprised in L.R. No. South Wanga/Ekero/788, now registered in the name of the 3rd defendant as L.R. No. South Wanga/Ekero/2675. He alleged that in 1970 his father purchased the 2 acres from Philip Chebii and Alphonse Makokha, sons of the registered owner Weyimi Wamwee, took immediate and continuous possession, merged the land with his contiguous parcel and planted sugar cane, thereby acquiring prescriptive rights by adverse possession after more than 12 years. The 3rd defendant maintained that he purchased 2 acres from the 1st and 2nd defendants, took vacant possession in 2004, built a permanent home and planted sugar cane, that the plaintiff never occupied the suit land but lived on and cultivated the adjacent parcel S. Wanga/Ekero/378, and that a tribunal decision in the plaintiff's favour had been overturned in Kakamega HCC No. 107 of 2009. The court, N.A. Matheka J, applied sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and the adverse possession principles in Wambugu v Njuguna, Gerald Muriithi v Wamugunda Muriuki, Francis Gicharu Kariri v Peter Njoroge Mairu and Kimani Ruchire v Swift Rutherfords, requiring proof of dispossession or discontinuance for twelve years and possession that is nec vi, nec clam, nec precario. Holding that the plaintiff failed to prove continuous, unbroken possession for the statutory period and did not establish his case on a balance of probabilities, the court dismissed the suit with costs. It is so ordered.

Key legal issues

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01

Whether the plaintiff acquired title to 2 acres by adverse possession

Holding

No. The plaintiff failed to establish continuous, unbroken and peaceful possession for over 12 years, and the case was not proved on a balance of probabilities.

Reasoning

The court set out the Wambugu v Njuguna principles that proof of adverse possession requires dispossession of the title holder or discontinuance of his possession for the statutory period, with possession that is nec vi, nec clam, nec precario and continuous. The plaintiff claimed his father bought 2 acres in 1970 and occupied them; the 3rd defendant asserted vacant possession since 2004 and that the plaintiff occupied and cultivated a different parcel. The court found the plaintiff's possession was not shown to be continuous and unbroken for 12 years, and noted a tribunal decision awarding the land to the plaintiff had been overturned on appeal in Kakamega HCC No. 107 of 2009.

p. 3
02

Indefeasibility of the 3rd defendant's title under the Land Registration Act

Holding

The registered proprietor of L.R. No. South Wanga/Ekero/2675 is the 3rd defendant; his title is prima facie absolute and indefeasible and can only be challenged on fraud, misrepresentation, or illegality, none of which was established.

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, noting registration vests absolute ownership and a certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge only on the ground of fraud or misrepresentation to which the proprietor is proved to be a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. Relying on Elijah Makeri Nyangw'ra, the court held a third party's title can be impugned only if such illegality is proved. The plaintiff's adverse possession claim did not displace the registered title on the facts.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on ground of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, the claimant must prove dispossession or discontinuance of the owner's possession for the statutory period, and the possession must be nec vi, nec clam, nec precario

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs to the defendants

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Act

Cases cited (5)

  • Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire v Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (land dispute over title and adverse possession)

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, "Gregory Mwamwee Wafula v Fredrick Amweya Chebii & 2 others [2019] KEELC 2511 (KLR)", Case Analysis (2019). ELC Case No. 289 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2511/eng@2019-07-03

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