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ELCDismissedELC Case No. 631 of 2014· [2019] KEELC 4151 (KLR)

Josephat Nuhu Alikhana v Liyanzer Roselyne Ingato [2019] KEELC 4151 (KLR)

Environment and Land Court
20 March 2019
NMN.A. Matheka
1,581 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega dismissed an adverse possession claim because the claimant could not prove 12 continuous years of open occupation.

What this practically means

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Executive summary

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The plaintiff claimed the whole of parcel Kakamega/Mugomari/329 (0.40 Ha) by adverse possession, seeking declarations that the defendant's rights were extinguished and that title be transferred and registered in his name. He testified he had lived on the land from 1995 caring for his aunt Juliana, who in 2004 willed the land to him; she died in 2006, her daughter Josephine inherited the land, and the plaintiff obtained a Shinyalu Land Disputes Tribunal award, which was never adopted (Kakamega Misc. 81 of 2009 was declined for want of jurisdiction). He said the defendant evicted him in 2010. The defendant, a purchaser from Josephine, produced an agreement, certificate of title and green card, asserting she was an innocent purchaser for value without notice and that the 12-year period had not run against her. The court applied sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title, and the Wambugu v Njuguna and Kimani Ruchire principles on adverse possession (nec vi, nec clam, nec precario, continuous for 12 years with the owner's knowledge). It found the plaintiff was a licensee until Juliana's death in 2006 and enjoyed only about three years of open possession before instituting tribunal proceedings, breaking continuity. The defendant's title as an innocent purchaser was good. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

The plaintiff did not; his occupation before 2006 was with the permission of Juliana (a licence), and thereafter his possession lasted only about three years and was broken by litigation, far short of 12 continuous years

Reasoning

The court applied the Wambugu v Njuguna principles requiring dispossession or discontinuance of the proprietor's possession for 12 years. The plaintiff was a licensee of Juliana until her death in 2006, then litigated against Josephine at the Land Disputes Tribunal from 2009, interrupting possession. The defendant, an innocent purchaser for value without notice, took good title.

p. 2
02

Whether the defendant's registered title could be defeated

Holding

No; her title as an innocent purchaser for value without notice is good and protected under sections 24(a) and 26(1) of the Land Registration Act

Reasoning

The court invoked the indefeasibility provisions of the Land Registration Act and Makeri Nyangw'ra, noting title can only be impugned for fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme - none was proved against the defendant.

p. 2

Legal principles established

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  • 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 a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession the claimant must prove nec vi, nec clam, nec precario possession that is continuous for the statutory period with the owner's knowledge

Court orders

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  1. 1.The plaintiff's suit is dismissed with no orders as to costs

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 (6)

  • 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
  • Kakamega Misc. 81 of 2009
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act in a claim 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, "Josephat Nuhu Alikhana v Liyanzer Roselyne Ingato [2019] KEELC 4151 (KLR)", Case Analysis (2019). ELC Case No. 631 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4151/eng@2019-03-20

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