Elizabeth Savala v Hezekiah Kirahi Liyosi & another [2020] KEELC 14 (KLR)
The bottom line
#A Kenyan court ruled that living openly on land you bought for over 12 years can defeat even a registered title holder's ownership claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired title to the suit land by adverse possession
The court found that the plaintiff had been in exclusive, continuous and uninterrupted possession from 1972, exceeding twelve years, and established her claim on a balance of probabilities
The plaintiff testified that her husband bought the land in 1972 under a written sale agreement, took possession, and had lived there continuously to date. Applying the Wambugu v Njuguna principles and the nec vi, nec clam, nec precario standard, the court found her possession was open, continuous and not broken for temporary purposes, defeating the defendant's title.
Whether the 1st defendant had any valid title to transfer to the 2nd defendant on 21st October 2010
The court held that by the date of the transfer the 1st defendant had no valid title, the land not being available for sale, so the 2nd defendant could not defend his title against the plaintiff
The court found the plaintiff's adverse possession had already run before the 2010 sale. Since the plaintiff was in occupation from 1972, the suit land 'was not available for sale', and the 1st defendant had no valid title to pass to the 2nd defendant notwithstanding registration and the title deed issued.
Whether the 2nd defendant's registered title was indefeasible and defeated the plaintiff's claim
No; the court held the 2nd defendant's title could not stand against the plaintiff's long occupation
While acknowledging section 26(1) of the Land Registration Act protects title, the court relied on Elijah Makeri Nyangw'ra for the proposition that even a title in the hands of a third party can be impugned where obtained illegally, unprocedurally or through a corrupt scheme. The land having been occupied by the plaintiff since 1972, the sale to the 2nd defendant could not confer a good title.
Legal principles established
#- Registration of a person as proprietor of land vests absolute ownership of that land in that person
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
- To acquire title by adverse possession the claimant must prove dispossession or discontinuance of possession by the owner for the statutory period of twelve years, openly and without force, secrecy or permission
- Where a claimant pleads a sale agreement and alternatively adverse possession, possession becomes adverse after payment of the last instalment of the purchase price, and title vests on twelve years' occupation thereafter
Court orders
#- 1.Declaration that the 2nd defendant holds in trust for the plaintiff land parcel No. Nyang'ori/Banja/1039
- 2.Declaration that the plaintiff is the owner of land parcel No. Nyang'ori/Banja/1039 which she occupies, by virtue of adverse possession, and an order that the 2nd defendant transfer the suit land to the plaintiff within 30 days, in default the Deputy Registrar to sign the transfer documents
- 3.No orders as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act (claim for declaration of title through adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Savala v Hezekiah Kirahi Liyosi & another [2020] KEELC 14 (KLR)", Case Analysis (2020). ELC Case No. 48 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/14/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.