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ELCPartially AllowedOriginating Summons dated 28th July 2015· [2019] KEELC 3738 (KLR)

Mariko Guya v Jagongo Osio [2019] KEELC 3738 (KLR)

Environment and Land Court
21 March 2019
4,120 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A man who farmed land he bought in 1977 for 38 years won ownership in Kenya's Environment and Land Court, even though the sale itself was legally void.

What this practically means

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Executive summary

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By Originating Summons dated 28th July 2015, the plaintiff sought a declaration that he had acquired 1 ½ acres of land parcel KISUMU/RATTA/285 (now KISUMU/RATTA/2923, registered in the 2nd defendant's name) by adverse possession, having bought it from the 1st defendant under an agreement dated 3rd August 1977 and occupied it openly for 38 years. Both defendants denied the sale and occupation, and the 1st defendant pleaded res judicata based on prior litigation, including Kisumu West District Land Dispute Tribunal Case No. 4 of 2011, which had ruled in the plaintiff's favour. The court first held that the res judicata plea failed: the Tribunal had no jurisdiction over disputes concerning ownership of registered land or adverse possession claims, and a judgment rendered without jurisdiction cannot operate as res judicata. On the merits, the 1st defendant conceded in cross-examination that he sold the plaintiff the land on which the plaintiff still lived, and the agreement bore the parties' identity card numbers and thumb prints. The sale was a controlled transaction; since Land Control Board consent was never obtained, the agreement became void on 3rd March 1978, whereupon the plaintiff's continued possession became adverse. No eviction occurred within 12 years, so the defendants' title was extinguished in 1990 and the sub-division and transfer to the 2nd defendant did not interrupt the claim. The court declared that the plaintiff had obtained title by adverse possession, ordered his registration as proprietor of KISUMU/RATTA/2923, directed the 2nd defendant to execute transfer documents within 30 days with default execution by the Deputy Registrar, awarded the plaintiff costs against the 2nd defendant, and dismissed the claim against the 1st defendant with no orders as to costs.

Key legal issues

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01

Whether the suit is barred by res judicata

Holding

The plea of res judicata fails because the Tribunal's judgment was delivered in excess of jurisdiction; a judgment without jurisdiction cannot operate as res judicata, and the Tribunal had no power to determine adverse possession claims.

Reasoning

The 1st defendant pleaded that prior suits over the same subject matter rendered this suit res judicata. The Tribunal decision in case No. 4 of 2011 concerned ownership of registered land, a matter beyond its statutory jurisdiction under the repealed Land Disputes Tribunal Act, and adverse possession claims are a preserve of the ELC under section 38 of the Limitation of Actions Act. The court dismissed the plea.

p. 3
02

Whether the plaintiff acquired title by adverse possession

Holding

Yes. The plaintiff entered under a 1977 sale agreement which became void in March 1978 for lack of Land Control Board consent; his possession became adverse and, no eviction having taken place within 12 years, the defendants' title was extinguished in 1990.

Reasoning

The plaintiff bought 1 ½ acres in 1977 and occupied it openly, farming it without force, secrecy or permission. The 1st defendant conceded in cross-examination that he sold the land and that the plaintiff still lived on it. Since the transaction became void on 3rd March 1978 under section 8(1) of the Land Control Act, time ran from then; the 38-year occupation far exceeded the 12-year limitation period, and subsequent sub-division and transfer to the 2nd defendant did not interrupt the claim.

p. 5
03

Whether the proper defendant in an adverse possession claim is the registered proprietor

Holding

A claim for adverse possession lies against the registered proprietor of the land; the 1st defendant need not have been enjoined since the suit land was registered in the 2nd defendant's name.

Reasoning

Section 38(1) of the Limitation of Actions Act allows an applicant to seek registration as proprietor in place of the persons then registered. Since the suit land KISUMU/RATTA/2923 was registered in the 2nd defendant's name, orders could properly issue against him alone.

p. 5

Legal principles established

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  • A judgment of a court or tribunal without jurisdiction cannot operate as res judicata
  • A Land Dispute Tribunal had no jurisdiction to determine disputes concerning ownership of registered land or claims based on adverse possession
  • A change of ownership of land claimed through adverse possession does not interrupt the claim
  • Where a controlled transaction becomes void for lack of Land Control Board consent, the purchaser's continued possession becomes adverse from the date the transaction becomes void
  • Utilisation of land for growing crops is sufficient evidence of occupation and possession

Court orders

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  1. 1.Declaration that the plaintiff has obtained title to land parcel NO. KISUMU/RATTA/2923 measuring 1 ½ acres through adverse possession
  2. 2.The plaintiff be registered as the proprietor of land parcel NO. KISUMU/RATTA/2923 measuring 1 ½ acres
  3. 3.The 2nd defendant to execute all necessary documents to effect the transfer of KISUMU/RATTA/2923 into the plaintiff's names within 30 days of the judgment
  4. 4.In default, the Deputy Registrar to execute all the documents on behalf of the 2nd defendant to effect the said transfer
  5. 5.The 2nd defendant shall meet the costs of the plaintiff
  6. 6.The claim against the 1st defendant is dismissed with no orders as to costs

Authorities

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Legislation

  • Land Registration Actsection 28
  • Civil Procedure Actsection 7
  • Land Disputes Tribunal Act (Repealed)section 3
  • Limitation of Actions Actsection 38(1)
  • Land Control Actsections 6(1) and 8(1)
  • Registered Land Act (Repealed)section 30(f)

Cases cited (7)

  • KARIA V A-G & ANOTHER
    2005 I E.A 83
  • KAMUNGE & OTHERS V PIONEER GENERAL ASSURANCE SOCIETY LTD
    1971 E.A 263
  • JOTHAM AMUNAVI V THE CHAIRMAN SABATIA LAND DISPUTES TRIBUNAL & ANOTHER
    C.A CIVIL APPEAL NO. 256 OF 2002
  • KASUVE V MWAANI INVESTMENTS LTD & OTHERS
    2004 I K.L.R 184
  • GITHU V NDEETE
    1984 KLR 776
  • SAMUEL WAWERU V JANE NJERI RICHU
    C.A CIVIL APPEAL NO. 122 OF 2001 (2007 eKLR)
  • KIMANI RUCHINE V SWIFT RUTHERFOLD
    1980 KLR 10
Jurisdiction invoked
Section 38 of the Limitation of Actions Act - jurisdiction of the Environment and Land Court over claims for 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, "Mariko Guya v Jagongo Osio [2019] KEELC 3738 (KLR)", Case Analysis (2019). Originating Summons dated 28th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3738/eng@2019-03-21

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