Elung’ata (Suing as legal representative of the Estate of the Late Patroba Omoding Ikwara - Deceased) v Emase & another (Environment & Land Case 111 of 2011) [2019] KEELC 5104 (KLR)
The bottom line
#A Bungoma court awarded a widow five acres of family land after 25 years of open occupation, but denied her the sixth acre she claimed.
What this practically means
#Executive summary
#Key legal issues
#Computation of the limitation period for adverse possession where land was previously registered under the Settlement Fund Trustee
Time runs from 2nd October 1986 when the land was registered in ONYAPIDI's name, not from 1974 when the plaintiff entered the land while it was under the Settlement Fund Trustee
Relying on the five-judge bench decision in GITU v NDUNGU, the court held that the Settlement Fund Trustee's interest is not extinguishable under the Limitation of Actions Act, overruling the contrary decision in LUSENEKA and endorsing OREDO v WABOMBA. The plaintiff's family had by 2011 occupied the five acres for over twenty-five years from 1986, far beyond the statutory twelve years.
Whether the plaintiff's occupation was adverse
Entry in 1974 was permissive, but after the 1981 sale agreement became null and void for want of Land Control Board consent, continued occupation of the five acres became adverse to the owner and his successor in title
The court found clear evidence that PATROBA entered in 1974 at ONYAPIDI's invitation and later bought five acres in 1981. The agreement became void six months after execution for lack of LCB consent, yet neither ONYAPIDI nor the 2nd defendant asserted ownership or sued for eviction until 2011. The change of registration to the 2nd defendant did not interrupt possession.
Quantum: five acres or six
The plaintiff is entitled to five acres only; the extra acre allocated by the clans in 2000 cannot be claimed either as gift (no capacity) or by adverse possession (only 11 years' occupation by November 2011)
The plaintiff herself conceded she took possession of the extra one acre in 2000. The clans' agreement of 21st December 2000 was a meddling with the estate of a deceased registered owner and had no force of law, and the twelve-year period for the extra acre had not expired when suit was filed in November 2011.
Whether orders can issue against the 1st defendant
No; adverse possession is claimable only against the registered proprietor, the 2nd defendant
Section 38(1) of the Limitation of Actions Act allows an order in place of the person then registered as proprietor. Since the suit land is no longer registered in ONYAPIDI's name, suing his administrators was unnecessary and the claim against the 1st defendant was dismissed.
Defence of forgery of the 1981 sale agreement and time-bar
Rejected; no evidence of forgery was led beyond mere allegation, both defendants conceded they were not privy to the agreement, and the limitation defence failed on computation of time
Although the defendants alleged the 31st May 1981 agreement was a forgery and lapsed for want of LCB consent, they led no evidence of forgery. In any event the plaintiff's case was founded on adverse possession, not on enforcement of the agreement, and possession of the five acres exceeded twelve years computed from 1986.
Legal principles established
#- A claimant in adverse possession must prove exclusive possession of the land openly and as of right without interruption for 12 years either after dispossessing the owner or after discontinuation of possession by the owner
- The period when land is registered under the Settlement Fund Trustee is excluded when computing limitation time; time runs from registration of the individual proprietor
- There can be no adverse possession where the claimant entered the land at the invitation of the owner
- Adverse possession claims lie against the registered proprietor of the land, not against administrators of a former owner's estate
- A family or clan agreement has no force of law where the parties had no capacity to alienate a deceased person's registered land
Court orders
#- 1.An order is made that the plaintiff has become entitled to five (5) acres out of the land parcel No Bungoma/Kibisi/220 by way of adverse possession
- 2.The 2nd defendant to execute all the relevant documents to facilitate the transfer of five (5) acres out of land parcel No Bungoma/Kibisi/220 to the plaintiff within 30 days of the delivery of the judgment
- 3.In default, the Deputy Registrar of the Court is at liberty to execute all relevant documents on behalf of the 2nd defendant to facilitate such transfer
- 4.The claim against the 1st defendant is dismissed
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (first-instance claim for adverse possession to registered land); part-heard before A. OMOLLO J and concluded by BOAZ N. OLAO J
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elung’ata (Suing as legal representative of the Estate of the Late Patroba Omoding Ikwara - Deceased) v Emase & another (Environment & Land Case 111 of 2011) [2019] KEELC 5104 (KLR)", Case Analysis (2019). Bungoma ELC Originating Summons (Number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5104/eng@2019-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.