Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedBungoma ELC Case No. 184 of 2014 (consolidated with Bungoma ELC Case No. 6 of 2015)· [2019] KEELC 3068 (KLR)

Wilson Barasa Waukhila & 13 others v John Kisero Zebedayo & 6 others [2019] KEELC 3068 (KLR)

Environment and Land Court
9 May 2019
BOBoaz N. Olao
8,949 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

#

A Bungoma court awarded 48 acres to a family that openly farmed and lived on the land for decades, wiping out the registered owners' title.

What this practically means

#

Executive summary

#
Fourteen plaintiffs, sons of the late Simon Wachiye Nabiliki, sought under an Originating Summons to be declared joint owners of 48 acres out of land parcel Malakisi/East Sasuri/553 by adverse possession, relying on a 9th January 1964 agreement under which Simon purchased land from Zebedayo Kisiero for heads of cattle, took possession, and settled there with his family. The defendants, Zebedayo's sons registered as proprietors in 2009, counter-claimed in Bungoma ELC Case No. 6 of 2015 for a declaration that the plaintiffs were in illegal occupation and for their eviction, contending that Simon bought only a small portion (15 baringos, about 3 acres), left 20 heads of cattle unpaid, and was a mere licencee. The two suits were consolidated with the Originating Summons as plaint and the later plaint as defence and counter-claim. A preliminary objection on locus standi had been dismissed by Mukunya J in 2016. Applying the adverse possession principles in Kasuve v Mwaani, Wambugu v Njuguna, Mtana Lewa and Wambui Gikwa, Boaz N. Olao J found that Simon took possession in 1964, that time ran from repudiation of the agreement on 2nd April 1967 or from possession in 1964, that ZEBEDAYO's 1978 counter-claim came too late to interrupt possession, and that time for each plaintiff ran from his attainment of majority. All fourteen plaintiffs had exceeded the statutory 12-year period. The defendants' title to the 48 acres was extinguished and they became trustees for the plaintiffs; the counter-claim was dismissed. The Originating Summons was allowed, the plaintiffs declared joint owners of the 48 acres, transfer and subdivision orders issued, and each party ordered to bear its own costs. Judgment delivered on 9th May 2019.

Key legal issues

#
01

Whether the plaintiffs proved adverse possession of 48 acres

Holding

Yes - the plaintiffs proved exclusive, open, peaceful and uninterrupted occupation of a well-demarcated 48-acre half of the suit land for periods well in excess of 12 years computed from their respective ages of majority

Reasoning

The court found the 1964 sale agreement proved SIMON's entry and possession; the plaintiffs occupied a demarcated portion bounded by a seasonal stream, buried relatives there, and no evidence showed force, secrecy or licence. The 2nd defendant admitted not knowing the acreage occupied by either side, and the defendants' attempt to evict the plaintiffs from the whole land corroborated occupation of a substantial portion. Each plaintiff was assessed individually against the 12-year period from attainment of majority.

p. 10
02

Effect of the plaintiffs' entry as purchaser and of unpaid purchase price

Holding

Entry as purchaser does not defeat adverse possession; time ran from repudiation of the agreement (last instalment on 2nd April 1967) or from possession in 1964 - either way well beyond 12 years

Reasoning

Relying on Wambugu v Njuguna, a purchaser allowed to stay pending completion acquires adverse title only upon repudiation of the contract. The last instalment was paid on 2nd April 1967 leaving 20 heads of cattle outstanding, so time ran from that date; alternatively, under Mbugua Njuguna, time ran from taking possession in 1964. The Land Control Act could not apply retrospectively to a 1964 agreement.

p. 6
03

Whether prior litigation (Kakamega HCCC 96 of 1978 and subsequent suits) interrupted adverse possession

Holding

No - ZEBEDAYO's counter-claim in the 1978 suit was itself caught by Section 7 of the Limitation of Actions Act since SIMON had by then occupied the land for 14 years; later suits also came too late

Reasoning

Interruption requires the owner to sue while still entitled to do so or the possessor to acknowledge the owner's title. By 1978, ZEBEDAYO's right to recover land had been extinguished under Section 7, so his counter-claim 'could not interrupt what had already occurred'. The 2005 Tribunal case and the 2006 judicial review were also filed long after the period had matured.

p. 8
04

Whether the defendants' counter-claim for eviction could stand

Holding

No - it was obliterated by the plaintiffs' proved adverse possession and was in any event statute-barred

Reasoning

Registered ownership is subject to overriding interests including rights acquired under the limitation-of-actions statutes (Section 30(f) of the repealed Registered Land Act; Section 28(h) of the Land Registration Act 2012). After 12 years of SIMON's hostile possession, the registered proprietors became mere trustees of the 48 acres for the plaintiffs, leaving no basis for a declaration of illegal occupation or eviction.

p. 11

Legal principles established

#
  • A claimant to land by adverse possession must prove exclusive, open possession as of right without interruption for 12 years, either after dispossessing the owner or after discontinuation of possession by the owner
  • The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act extinguishes the title of the registered proprietor in favour of the adverse possessor after 12 years
  • Possession under a pending purchase only becomes adverse once the contract is repudiated; time runs from repudiation
  • Time for adverse possession cannot run in favour of minors; it commences only upon attainment of the age of majority

Court orders

#
  1. 1.The defendants' counter-claim is dismissed
  2. 2.Declared that the plaintiffs be registered as joint owners of the portion measuring 48 acres out of land parcel NO MALAKISI/SASURI/553 having acquired it by adverse possession
  3. 3.The defendants to execute all necessary documents to facilitate registration of the 48 acres in the names of the plaintiffs within 30 days, and in default the Deputy Registrar to execute on their behalf
  4. 4.The Land Registrar Bungoma to cancel the existing title and issue two titles - one in the names of the plaintiffs measuring 48 acres and the remaining portion in the name of the defendants
  5. 5.Each party to meet their own costs of the suit

Authorities

#

Legislation

  • Limitation of Actions Act (Chapter 22 Laws of Kenya)Sections 7, 13, 17, 38(1), 37
  • Land Registration Act 2012Sections 24, 28(h)
  • Land Act 2012Section 7(d)
  • Environment and Land Court ActSection 23(1)
  • Registered Land Act (repealed)Sections 27(a), 30
  • Land Control ActSection 6(1)
  • Age of Majority Act (Chapter 33 Laws of Kenya)Section 2
  • Black's Law Dictionary 10th EditionDefinitions of 'interruption' and 'legal interruption'

Cases cited (11)

  • KASUVE .V. MWAANI INVESTMENT LTD & OTHERS
    2004 I. KLR 184
  • BENJAMIN KAMAU & OTHERS .V. GLADYS NJERI
    C.A Civil Appeal No 2132 of 1996
  • KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFORD & CO LTD
    1976–80 I KLR 1500 (1980 KLR 10)
  • JANDU .V. KIRPAL
    1975 E.A 225
  • WAMBUGU .V. NJUGUNA
    1983 KLR 172
  • GITHU .V. NDEETE
    1984 KLR 776
  • MAWEU .V. LIU RANCHING & FARMING CO-OPERATIVE SOCIETY LTD
    1985 KLR 430
  • MTANA LEWA .V. KAHINDI NGALA MWAGANDI
    2015 eKLR [C.A Civil Appeal No 56 of 2014 [Malindi]
  • SAMUEL MIKI WAWERU .V. JANE NJERI RICHU
    C.A Civil Appeal No 122 of 2001
  • MBUGUA NJUGUNA .V. ELIJAH MBURU WANYOIKE & ANOTHER
    C.A Civil Appeal No 27 of 2002
  • WAMBUI GIKWA .V. PAUL KIMANI MURABA
    C.A Civil Appeal No 161 of 2013 [2016 eKLR]
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (original jurisdiction over land claims including adverse possession); Order 37 Originating Summons procedure under the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Wilson Barasa Waukhila & 13 others v John Kisero Zebedayo & 6 others [2019] KEELC 3068 (KLR)", Case Analysis (2019). Bungoma ELC Case No. 184 of 2014 (consolidated with Bungoma ELC Case No. 6 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3068/eng@2019-05-09

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