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ELCPartially AllowedELC Case No. 712 of 2015 (Formerly HCCC No. 15 of 2009 [O.S])· [2019] KEELC 4353 (KLR)

Joab Okello Nyabunde & 4 others v Abu Majikha Group [2019] KEELC 4353 (KLR)

Environment and Land Court
6 March 2019
SKS.M. Kibunja
910 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Five Plaintiffs brought an originating summons dated 11 February 2009 (amended 13 July 2010) against Abu Majikha Group, claiming to have been in adverse possession of part of Kisumu/Karateng/1628 registered in the Defendant's name, seeking declarations on the validity of the Defendant's title, a declaration that the Defendant hold the land in trust, registration of the Plaintiffs as proprietors of the claimed portion, and rectification of the register. The Defendant entered appearance through counsel but filed no statement of defence and did not participate in the hearing. The 1st to 3rd Plaintiffs testified that they had occupied twenty acres of the suit land since before its registration, had buried their deceased relatives on it without interference, and had filed a caution through a representative in 1993 which the Defendant later lifted. The court framed four issues: the Defendant's registration as proprietor, the continuity of the Plaintiffs' occupation, extinguishment of title by prescription, and costs. It found the green card confirmed the Defendant's registration on 20 April 1977, and the Plaintiffs' occupation of twenty acres was undisputed. However, although the amended summons claimed forty acres, no evidence supported the larger acreage. The court held the Plaintiffs had proved their case on a balance of probabilities over about twenty acres, extinguished the Defendant's title to that portion by adverse possession, ordered that the twenty acres be registered in the Plaintiffs' names, and directed each party to bear their own costs given the Defendant's non-participation.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession of the suit land

Holding

The Plaintiffs proved adverse possession of about 20 acres of Kisumu/Karateng/1628 for over twelve years, extinguishing the Defendant's title to that portion

Reasoning

The green card confirmed the Defendant was first registered on 20 April 1977 and issued a Land Certificate in 1980. The Plaintiffs' testimony that they occupied twenty acres even before registration was undisputed, as the Defendant entered appearance but filed no defence and did not participate in the hearing. Occupies for over twelve years with burials on the land without interference established prescription over the twenty-acre portion only.

p. 2
02

Whether the claim could extend to 40 acres as pleaded in the amended originating summons

Holding

No, the claim succeeded only for the 20 acres supported by evidence

Reasoning

Although the amended originating summons increased the acreage claimed from twenty to forty acres, the witness statement of PW1 and his testimony confirmed occupation of only twenty acres, the portion actually sued for. The court held there was no evidence supporting the amended acreage, so relief was limited to the proved portion.

p. 2

Legal principles established

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  • Adverse possession for over twelve years extinguishes the registered proprietor's title to the land in occupation.
  • A party pleading a particular acreage or claim in amended pleadings must tender evidence in support of it, failing which the unproved portion fails.

Court orders

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  1. 1.That the Plaintiffs having been in adverse possession of about twenty (20) acres of Kisumu/Karateng/1628 for over twelve (12) years, the Defendant's title to the said acreage has been extinguished by operation of the law.
  2. 2.That the Plaintiffs have acquired ownership of the portion of Kisumu/Karateng/1628, measuring about twenty (20) acres, that has been under their occupation for over twelve (12) years and that the said portion be registered in their names.
  3. 3.That as the Defendant did not defend the Plaintiffs' claim, each party to bear their own costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(2)
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to land under the Environment and Land Court 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, "Joab Okello Nyabunde & 4 others v Abu Majikha Group [2019] KEELC 4353 (KLR)", Case Analysis (2019). ELC Case No. 712 of 2015 (Formerly HCCC No. 15 of 2009 [O.S]). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4353/eng@2019-03-06

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