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ELCDismissedELC Case No. 224 of 2014· [2019] KEELC 3402 (KLR)

Charles Muriongo & another v Francis Omondi [2019] KEELC 3402 (KLR)

Environment and Land Court
7 May 2019
NMN.A. Matheka
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kakamega land court dismissed a family's claim to own land through long occupation because they couldn't prove 12 years of uninterrupted, peaceful possession.

What this practically means

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Executive summary

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The plaintiffs, Charles and Antony Muriongo, administrators of the estate of their late father Zakaria Kweyu, claimed title to land parcel No. S. Wanga/Lureko/695 by adverse possession, seeking cancellation of the defendant Francis Omondi's registration and entry of their names as proprietors. They asserted that their father had occupied and used the land openly, continuously and peacefully since the 1970s, that there was no marked boundary between parcel 422 (registered to their father) and parcel 695, that the defendant had never occupied the land since registration in 1967, and that any attempt by him to reclaim the land in 2004 came after his right had been extinguished. The defendant maintained that he was first registered as sole owner in 1967, used the land exclusively, and that the plaintiffs trespassed in 2004; tribunal and provincial appeals in the disputes went in his favour with no appeal filed. The court, applying sections 24(a) and 26(1) of the Land Registration Act and the adverse possession principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, held that possession must be open, continuous and peaceful (nec vi, nec clam, nec precario) for at least 12 years. It found the plaintiffs' occupation was not peaceful, being punctuated by tribunal disputes from 1981 and in 2007, and that the undisputed occupation from 1970 to 1981 spanned only about 11 years. The suit was dismissed with costs, the defendant being confirmed as the legal registered owner with a good title.

Key legal issues

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01

Whether the plaintiffs acquired title by adverse possession to S. Wanga/Lureko/695

Holding

No - the claim failed. The plaintiffs did not prove continuous and peaceful possession for the requisite 12-year period; their possession was interrupted by disputes, and the undisputed period was approximately 11 years.

Reasoning

The court applied the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords: possession must be nec vi, nec clam, nec precario, continuous and with the owner's knowledge. The plaintiffs' own evidence showed tribunal and court disputes over the land from 1981 and in 2007, demonstrating the possession was not peaceful. Occupation from 1970 to 1981 was about 11 years, short of the statutory period. The defendant, registered in 1967, was held to hold a good title under sections 24(a) and 26(1) of the Land Registration Act.

p. 2
02

The indefeasibility of the defendant's registered title

Holding

The defendant, as registered proprietor since 1967, held a good title under sections 24(a) and 26(1) of the Land Registration Act, which was not impugned on any of the recognised grounds.

Reasoning

The court relied on section 24(a) and section 26(1) of the Land Registration Act, which make a certificate of title prima facie evidence of absolute and indefeasible ownership, subject only to challenge for fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such ground was proved, so the plaintiffs' adverse possession claim was the only avenue, and it failed on the evidence.

p. 2

Legal principles established

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  • Registration as proprietor vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession the claimant must prove open, continuous and peaceful possession (nec vi, nec clam, nec precario) for at least 12 years, with the owner's knowledge, and possession broken by disputes does not qualify

Court orders

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  1. 1.The plaintiffs' suit claiming title to land parcel No. S. Wanga/Lureko/695 by adverse possession is dismissed
  2. 2.The defendant is found to be the legal registered owner and his title is good
  3. 3.The plaintiffs shall pay the defendant's costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actprovisions on adverse possession

Cases cited (5)

  • Elijah Makeri Nyangw'ra -vs- 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 over claims relating to title to land (claim for title by adverse possession under the Limitation of Actions Act and the Land Registration Act)

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, "Charles Muriongo & another v Francis Omondi [2019] KEELC 3402 (KLR)", Case Analysis (2019). ELC Case No. 224 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3402/eng@2019-05-07

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