Joyce K Makokha & 2 others v Ferdinand M Mufutu & another [2019] KEELC 3906 (KLR)
The bottom line
#A Bungoma court handed a family land ownership after they openly occupied and farmed it for over 12 years, even against a deceased owner's estate.
What this practically means
#Executive summary
#Key legal issues
#Elements of adverse possession
The plaintiffs proved exclusive, open and continuous occupation of the suit land since 1973, well beyond the 12-year limitation period
The court applied the test in Kasuve v Mwaani Investments Ltd. The evidence showed the deceased moved onto the land in 1973, built homes, farmed it, and both he and his first wife were buried there. Both defendants admitted in cross-examination that the plaintiffs' family was in possession and that they had never lived on the land. Occupation since 1973 far exceeded the 12-year period.
Whether litigation over the land interrupted adverse possession
The first suit filed in 1998 could not interrupt the possession because 19 years of adverse possession had already accrued; the plaintiffs' rights had crystallised
Citing Githu v Ndeete, the court noted that time stops running when the owner asserts his right. However, computing time from first registration of the original parcel on 7th August 1979, the plaintiffs had been in adverse possession for nineteen years by 1998 when the first case was filed. Their right had already crystallised and the defendants' rights were extinguished.
Maintainability of the claim against a deceased person's Estate
The claim was properly maintainable against the Estate, and both defendants were properly sued as Administrators
One parcel (BOKOLI/BOKOLI/1698) was still registered in the name of the late FESTO MUFUTU MILIMO. Relying on Section 2(1) of the Law Reform Act and Karuntimi Raiji v M'Makinya M'Itunga, the court held that a claim in adverse possession can be instituted against the Estate of a deceased person, so both defendants, as joint Administrators, were properly before the court.
Effect of sub-division and transfer of the original parcel
The sub-division and transfer did not interrupt the plaintiffs' adverse possession; the defendants became mere trustees of the plaintiffs
The original parcel was first registered on 7th August 1979. Time ran from that registration and the change of ownership to FESTO MUFUTU MILIMO did not interrupt possession. By the time of the 1997 sub-division creating the suit parcels, the defendants' rights were already extinguished, making them trustees of the plaintiffs.
Recognition of adverse possession under the new land laws
The doctrine of adverse possession is recognised as an overriding interest under the Land Registration Act, 2012 and as a mode of acquisition under the Land Act, 2012
The court noted that the new land laws following the 2010 Constitution recognise adverse possession: Section 28(h) of the Land Registration Act lists rights acquired by virtue of written law relating to limitation of actions or prescription as overriding interests, and Section 7 of the Land Act recognises prescription as a mode of acquiring title to land.
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 upon discontinuation of possession by the owner
- The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act extinguishes the registered proprietor's title in favour of an adverse possessor at the expiry of 12 years
- Time under the Limitation of Actions Act stops running when the owner asserts his right or when his right is admitted by the adverse possessor
- A claim in adverse possession may be instituted against the Estate of a deceased person under Section 2(1) of the Law Reform Act
- Change of registered proprietor of land does not interrupt the adverse possession of a person already in possession
- Possession of the land claimed by an adverse possessor is a matter of fact to be observed on the land in dispute
Court orders
#- 1.Declaration that the plaintiffs have become entitled to land parcels NO BOKOLI/BOKOLI/1697 and BOKOLI/BOKOLI/1698 by way of adverse possession
- 2.The defendants to, within 30 days of the judgment, execute all relevant documents to facilitate transfer of the two parcels into the joint names of the plaintiffs
- 3.In default, the Deputy Registrar to execute such documents on behalf of the defendants
- 4.The plaintiffs awarded the costs of the suit
- Jurisdiction invoked
- Sections 7, 17 and 38 of the Limitation of Actions Act (original jurisdiction to order registration of an adverse possessor as proprietor)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce K Makokha & 2 others v Ferdinand M Mufutu & another [2019] KEELC 3906 (KLR)", Case Analysis (2019). Originating Summons (Bungoma), amended 7th October 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3906/eng@2019-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.