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ELCPartially AllowedNot stated in the judgment (Homa Bay ELC suit, plaint dated 23rd September 2015)· [2019] KEELC 2682 (KLR)

Caren Anyango Omollo v Joshua Ondigo Jalango [2019] KEELC 2682 (KLR)

Environment and Land Court
8 April 2019
GOG.M.A. Ongondo
2,613 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that living on someone's land with their permission can never become ownership, no matter how long you stay.

What this practically means

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Executive summary

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In this first-instance Environment and Land Court suit at Migori, the plaintiff claimed to be the absolute registered proprietor of land parcel Kabondo/Kasewe/984, having obtained title on 27 March 2013 by transmission following the death in 1992 of the original owner, her mother Truphosa Bonyo Omollo, and following succession proceedings. She sought the defendant's eviction, general damages for trespass and mesne profits, alleging unlawful entry in 2003. The defendant, who described himself as a beneficiary and adopted child of the deceased, denied trespass and counterclaimed for a declaration that he had acquired title by adverse possession, having occupied the land since February 1992 with the deceased's consent, together with rectification of the register. The court framed five issues from the pleadings and submissions. It held that the plaintiff was the undisputed registered owner whose title could only be challenged on fraud, misrepresentation or adverse possession. It rejected the adverse possession claim because the defendant's own pleadings admitted his occupation was with the deceased's consent, making his possession consensual and not exclusive or adverse. It found trespass proved, awarded general damages of Kshs. 100,000, but refused mesne profits as they were not specifically pleaded. The defence and counterclaim were dismissed, and judgment entered for the plaintiff with eviction, damages and costs of both suit and counterclaim borne by the defendant. Judgment delivered at Migori on 8 April 2019 by G.M.A. Ongondo J.

Key legal issues

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01

Whether the plaintiff is the absolute registered owner of the suit land

Holding

Yes; registration of PW1 on 27 March 2013 under the repealed Registered Land Act was not disputed, and the defendant himself admitted her title

Reasoning

The plaint and defence both disclosed PW1 as sole registered owner; PW1 obtained a title deed dated 27 March 2013 through transmission following succession proceedings, and DW1 conceded in cross-examination that PW1 has title. Exhibits from both sides confirmed her proprietorship, and sections 24, 25 and 26 of the Land Registration Act confer absolute rights on a registered owner.

p. 3
02

Whether the defendant acquired title by adverse possession

Holding

No; his occupation was with the consent of the deceased/original owner and therefore not adverse

Reasoning

The defendant pleaded occupation since February 1992 with the consent of the ailing deceased, building on her homestead. Consent destroys the adverseness of possession. Following Virginia Wanjiru Mwangi and Ramco Investment Ltd, possession that is open, peaceful and continuous but consensual and non-exclusive cannot ripen into title. The counterclaim failed to attain the required standard of proof.

p. 3
03

Whether the defendant trespassed on the suit land in 2003

Holding

Yes; the defendant's entry was an unjustified intrusion on land absolutely owned by the plaintiff

Reasoning

PW1 testified that the defendant entered in 2003 after her mother's death, without her permission, built on, fenced off the land and stopped her from using it. DW1 and DW2's contrary testimony was found evasive and a mere denial. Unlawful occupation of private land is prohibited by section 152 of the Land Act, and trespass is actionable per se. General damages of Kshs. 100,000 were awarded.

p. 3

Legal principles established

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  • Possession that is consensual and not exclusive cannot found a claim of adverse possession
  • A registered proprietor's title can only be challenged on grounds of fraud, misrepresentation and adverse possession
  • Trespass is actionable without proof of damage
  • Mesne profits are special damages that must be specifically pleaded and proved

Court orders

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  1. 1.An order for eviction of the defendant from the suit land parcel number Kabondo/Kasewe/984
  2. 2.General damages for trespass at Kshs. 100,000/= only
  3. 3.Costs of the suit and the counterclaim to be borne by the defendant
  4. 4.Dismissal of the defendant's defence and counterclaim dated 12th October 2015

Authorities

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Legislation

  • Evidence Act (Cap 80)section 107(1)
  • Limitation of Actions Act (Cap 22)section 7
  • Registered Land Act (Cap 300)repealed
  • Land Registration Actsections 24, 25, 26
  • Land Actsection 152
  • Civil Procedure Act (Cap 21)section 2; proviso to section 27(1)

Cases cited (14)

  • Samwel Miki Waweru –v- Jane Njeri Richu
    (2007) eKLR
  • Wanyancha Gibiti and 3 others –v- Waigoge Nyahiri Sinda
    (2015) eKLR
  • Kipkebut t/a Riverside Lodge and Rooms –v- Ogola
    (2015) 1 EA 332
  • John Imbaiza Vodoyo –v- Ann Chebet and another
    (2017) eKLR
  • Galaxy Paints Co. Ltd –v- Falcon Grounds Ltd
    (2002) 2 EA 385
  • Great Lakes Transport Company (U) Ltd –v- Kenya Revenue Authority
    (2009) KLR 720
  • Wainaina –v- Murai and others
    (1976-80) 1 KLR 283
  • Virginia Wanjiru Mwangi –v- David Mwangi Jotham Kamau
    (2013) eKLR
  • Ramco Investment Ltd –v- Uni-Drive Theatre Ltd
    (2018) eKLR
  • Wilson Kazungu Katana and 101 others –v- Salim Abdallah Bakshwein and another
    (2015) eKLR
  • Nakuru Industries Ltd –v- S.S. Mehta and Sons
    (2016) eKLR
  • Rioki estate Company (1970) Ltd –v- Kinuthia Njoroge
    (1977) KLR 146
  • Tayebali Adanji Alibhai –v- Abdull Hussein Adanyi Alibhai
    (1938) 5 EACA
  • Kimani Ruchine and another –v- Swift Rutherford Company Ltd
    (1976-80) 1 KLR 1500
Jurisdiction invoked
First-instance civil suit before the Environment and Land Court (succession proceedings in Oyugis SP Court Succ. Cause No. 55 of 2012 and Homa Bay HC Succ. Cause No. 4 of 2014 only referred to as exhibits, not appeals)

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, "Caren Anyango Omollo v Joshua Ondigo Jalango [2019] KEELC 2682 (KLR)", Case Analysis (2019). Not stated in the judgment (Homa Bay ELC suit, plaint dated 23rd September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2682/eng@2019-04-08

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