Christian Wafula Omusolo & 2 others v Pauline Jerotich & another [2019] KEELC 4999 (KLR)
The bottom line
#Kenya's Land Court dismissed an adverse possession claim because the land had no registered owner, so the 12-year clock never started.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants proved adverse possession
Not proved - occupation for at least 12 years from the date of registration was not demonstrated because the land was unregistered when the suit was filed
The court accepted the Applicants purchased and took possession of portions between 1989 and 2000 without interruption. However, adverse possession time runs only from first registration in the name of someone other than the claimant. The official search showed the Respondents were only registered on 29th March 2016; in 2012, when the suit was filed, the land was unregistered. The Applicants also failed to file the certified land register directed by the court. Following Wilson Kazungu Katana, the claim failed.
Whether the Applicants were entitled to the reliefs sought
Not entitled, having failed to prove adverse possession
Since the foundational claim of adverse possession failed, none of the reliefs premised on it - registration of shares, amendment of the certificate of confirmation of grant, or facilitation of transfer - could issue. The court also declined to determine issues concerning non-disclosure in the succession cause, confining itself to matters within the Environment and Land Court's jurisdiction under the Limitation of Actions Act.
Who bears the costs of the suit
Each party to bear own costs, despite the general rule that costs follow the event
Although section 27 of the Civil Procedure Act prescribes that costs follow the event, the court exercised its discretion to depart from that rule because the Respondents neither filed a response to the originating summons nor participated in the trial. The successful parties took no steps to defend the claim, justifying an order that each party bear their own costs.
Legal principles established
#- Time for adverse possession cannot begin to run unless and until the land has a registered owner; possession must be reckoned from the date of first registration
- A claimant must prove exclusive, open, uninterrupted possession as of right for 12 years after dispossession or discontinuation of the owner's possession; part of land can be acquired by adverse possession
- Failure to annex a certified copy of the title under Order 37 Rule 7 is not necessarily fatal; the court may allow it to be filed in the course of proceedings
- Costs follow the event unless the court, for good reason, directs otherwise
Court orders
#- 1.The originating summons dated 15th August 2012 is dismissed
- 2.Parties shall bear their own costs
- Jurisdiction invoked
- Order 37 Rules 1, 3, 6 and 7 of the Civil Procedure Rules, sections 27 and 38 of the Limitation of Actions Act (Cap 22), confined to matters within the Environment and Land Court's jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christian Wafula Omusolo & 2 others v Pauline Jerotich & another [2019] KEELC 4999 (KLR)", Case Analysis (2019). ELC Case No. 111 of 2013 (formerly HCC 178 of 2012 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4999/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.