Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2019] KEELC 3267 (KLR)
The bottom line
#The High Court set aside a judgment that had handed a Bungoma man land by adverse possession, because the defendants showed they had real defences worth hearing at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the proceedings of 10th May 2017 were ex-parte as regards the 1st defendant
The proceedings were not ex-parte; counsel for the 1st defendant was present but walked out or refused to participate after an adjournment was denied, producing a regular judgment
On the hearing date the 1st defendant's counsel sought an adjournment to file notice to cease acting. The judge disallowed it and heard the plaintiff. Counsel did not cross-examine, so she either left or refused to participate. Following Din Mohamed v Lalji Visram, a judgment obtained in those circumstances is regular, not ex-parte, and the defendant cannot claim he was condemned unheard.
Whether the judgment against the 2nd defendant should be set aside
Service on the 2nd defendant was proper (personally, through his wife Dorcas, and by registered post); his claim to have instructed counsel through one Gilbert was not credible, and his conduct showed a deliberate intent to obstruct justice
The 2nd defendant was served repeatedly between 2012 and 2016, filed a Replying Affidavit in person, and never once attended court. His assertion that he instructed Wafula Wabwire Advocates through Gilbert was unsupported - the firm never came on record and Gilbert did not depone to it. The discretion to set aside is not designed to assist a party who deliberately seeks to obstruct or delay the cause of justice.
Whether the defendants' defences raise triable issues justifying setting aside even a regular judgment
Yes - the defences raise triable issues, notably whether the plaintiff's occupation from 1996 to 2011 was peaceful as required for adverse possession, and the plaintiff will suffer little prejudice as he was dispossessed in 2011
The 1st defendant's letter of 12th February 2002 shows disputes over trees, bananas and developments, indicating the plaintiff's occupation was not peaceful. Since adverse possession must be neither by force nor stealth, if occupation was not peaceful the plaintiff's claim fails and the 2nd defendant's title may stand. Where triable issues are disclosed, a defendant should be allowed to defend on just terms.
Whether the plaintiff's application for a Vesting Order could be granted
No - with the judgment set aside, there is no judgment on which the Vesting Order can be founded
The plaintiff's application of 5th July 2018 sought to execute the judgment of 20th December 2017 by vesting the suit land in him. Once that judgment was set aside on the defendants' applications, the foundation for the Vesting Order fell away and the application required no consideration.
Legal principles established
#- Where counsel duly instructed leaves the court and takes no further part upon being denied an adjournment, the resulting proceedings are not ex-parte and the judgment is a regular one
- A regular judgment will usually not be set aside unless the defendant discloses a defence on merits raising a triable issue
- A claimant in adverse possession must prove exclusive, open, peaceful and uninterrupted possession for 12 years, and possession that is neither by force nor stealth
Court orders
#- 1.The Judgment dated 30th July 2017 is hereby set aside
- 2.Each of the defendants shall within 30 days of delivery of this Judgment pay to the plaintiff the sum of Kshs. 15,000/= being thrown away costs
- 3.In default of payment of the thrown away costs, the order setting aside the Judgment shall stand discharged and vacated and the said Judgment shall be reinstated
- 4.Costs of the 1st defendant's application dated 21st September 2018 and the 2nd defendant's application dated 15th October 2018 are awarded to the plaintiff and shall be determined at the end of the trial
- 5.The parties are advised to take the earliest hearing date as this is an old matter filed in 2011
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over a claim for adverse possession of land (statutory provision not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2019] KEELC 3267 (KLR)", Case Analysis (2019). Bungoma ELC Case (amended Originating Summons dated 19th May 2012) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3267/eng@2019-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.