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ELCPartially AllowedOriginating Summons dated 1st November 2017 (Migori)· [2020] KEELC 700 (KLR)

Sylvester O. Ogolla & 3 others v Salome Atieno Otieno & another [2020] KEELC 700 (KLR)

Environment and Land Court of Kenya
11 November 2020
2,507 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that people who buy land but never get the title transferred can still own it after openly occupying it for over twelve years.

What this practically means

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Executive summary

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Four plaintiffs sued by originating summons dated 1st November 2017 under Sections 7 and 8 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, claiming portions of LR No. Suna East/Wasweta I/7624 (1.80 Ha, Migori County) by adverse possession. The property, registered in 1991 in the name of Charles Otieno Lute (deceased 2), was purchased in portions by the plaintiffs from the deceased through written sale agreements in 1989 and 1992, after which they took immediate, open and continuous possession, building and cultivating thereon. The suit was registered against the 1st and 2nd defendants, the deceased's personal representatives, who were duly served but neither entered appearance nor filed a defence; their case was deemed closed. The court identified the three ingredients of adverse possession from Wilson Kazungu Katana: registration in another's name, open and exclusive possession adverse to the owner's title, and uninterrupted occupation exceeding twelve years. It found each ingredient established on the uncontroverted evidence, also invoking equity's aid for purchasers in possession per Willy Kimutai Kitilit, and held the plaintiffs' case proved on a balance of probabilities. Judgment was entered for the plaintiffs jointly and severally in terms of prayers 1 to 6, including declarations of title by adverse possession over their respective defined portions, an order for execution of transfer instruments with liberty for the Deputy Registrar to execute in default, and costs against the defendants. The matter was heard in Migori on 11th November 2020.

Key legal issues

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01

Registration of the suit property in a name other than the plaintiffs'

Holding

The suit property was registered in the name of deceased 2 (Charles Otieno Lute) on 8th August 1991 with an absolute title, satisfying the first ingredient of adverse possession.

Reasoning

The court relied on the plaintiffs' uncontroverted affidavits and PEXhibits 7 and 8 showing registration of deceased 2 as absolute proprietor on 8th August 1991. It referred to Sections 24, 25 and 26 of the Land Registration Act and Sections 27 and 28 of the repealed Registered Land Act, holding the claims were over defined portions as in Muthuita v Wanoe.

p. 3
02

Open, exclusive and notorious possession adverse to the owner's title

Holding

The plaintiffs took immediate possession upon purchase, built and cultivated their portions, which constituted open and notorious possession amounting to ouster.

Reasoning

The court noted that each plaintiff deposed to taking immediate possession on purchase and cultivating and building on their portions (PEXhibit 5). Following Gatimu Kinguru v Muya Gathangi and Kimani Ruchine, cultivation and development were held to demonstrate open and notorious possession with ouster of the owner.

p. 3
03

Continuous occupation for over twelve years

Holding

The plaintiffs' occupation had been uninterrupted for a period in excess of twelve years, denying the owner's title, since purchase between 1989 and 1992.

Reasoning

Each plaintiff deposed that occupation and possession had been without interruption for over twelve years and that deceased 2, and by extension the defendants as personal representatives, had ceased to possess the land. The court applied Halsbury's Laws volume 22, Jaber Ali and Mutiso v Mutiso on denial of title.

p. 3
04

Equity in favour of purchasers in possession

Holding

The enforceable sale contracts between deceased 2 and the plaintiffs engaged principles of equity in aid of the purchasers who failed to obtain transfer.

Reasoning

The court held that since deceased 2 and the plaintiffs entered enforceable contracts (PEXhibits 2, 3 and 4), equity as espoused in Willy Kimutai Kitilit v Michael Kibet and Article 10(2)(b) of the Constitution aided the purchasers who could not secure transfer.

p. 4
05

Uncontroverted evidence and burden of proof

Holding

The defendants, though duly served, failed to defend the suit; the plaintiffs' case was therefore established on a balance of probabilities.

Reasoning

Service was proved by affidavits of a licensed process server, and the defendants' case was deemed closed. The court held the plaintiffs established their case on a balance of probabilities, citing Kirugi v Kabiya, and noted the defendants had been accorded fair hearing under Articles 48 and 50(1).

p. 4

Legal principles established

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  • The three ingredients of adverse possession are that the land is registered in another's name, the applicant is in open and exclusive possession adverse to the owner's title, and the occupation has exceeded twelve years dispossessing the owner.
  • Possession of land may take the form of tilling and tending the land.
  • Adverse possession means possession inconsistent with the title of the owner, requiring denial of the owner's title.
  • Equity aids purchasers in possession who have failed to obtain transfer of the land purchased.

Court orders

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  1. 1.Judgment entered for the plaintiffs against the defendants jointly and severally in terms of prayers 1, 2, 3, 4, 5 and 6 of the originating summons dated 1st November 2017
  2. 2.Declaration that the 1st plaintiff acquired title by adverse possession to 1 ha of LR No. Suna East/Wasweta I/7624
  3. 3.Declaration that the 2nd plaintiff acquired title by adverse possession to 2 1/2 ha of the suit property
  4. 4.Declaration that the 3rd plaintiff acquired title by adverse possession to 0.24 ha of the suit property
  5. 5.Declaration that the 4th plaintiff acquired title by adverse possession to 1 acre of the suit property
  6. 6.Order that the defendants execute and/or sign all necessary transfer instruments to facilitate sub-division, transfer and registration, with liberty for the Deputy Registrar to execute in default
  7. 7.Order that the 1st and 2nd defendants bear the costs of the case

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 8, 13(1), 38
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 37 Rules 7 & 14
  • Constitution of Kenya 2010Articles 10(2)(b), 48, 50(1), 60(1)
  • Land Registration ActSections 2, 24, 25, 26
  • Registered Land Act (repealed)Sections 27, 28
  • Law of Succession ActSections 3, 82

Cases cited (14)

  • Jaber Mohsen Ali and another v Priscillah Boit & another
    (2014) eKLR
  • Great Lakes Company (U) Ltd v Kenya Revenue Authority
    (2009) KLR 720
  • Wilson Kazungu Katana and 101 others v Salim Abdalla Bakshwein and another
    (2015) eKLR
  • Muthuita v Wanoe and 2 others
    (2008) 1 KLR (G & F) 1024
  • Wainaina v Murai and others
    (1976-80) 1 KLR 283
  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    (2014) eKLR
  • Elijah O. L Opar v Tobias Odhiambo Abach
    (2019) eKLR
  • Kimani Ruchine v Swift Rutherford Company Ltd and another
    (1976-80) KLR 1500
  • Gatimu Kinguru v Muya Gathangi
    (1976) KLR 253
  • Mutiso v Mutiso
    (1998) LLR 3268 (CAK)
  • Tayebali Adamji Alibhai v Abdulhussein Adamji Alibhai
    (1938) EA 5EA CA1
  • Willy Kimutai Kitilit v Michael Kibet
    (2018) eKLR
  • Onyango Oloo v Attorney General
    (1986-89) EA 456
  • Kirugi and another v Kabiya and 3 others
    (1987) KLR 387
Jurisdiction invoked
Articles 48 and 50(1) of the Constitution of Kenya 2010; Sections 7, 8 and 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rules 7 & 14 of the Civil Procedure Rules

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, "Sylvester O. Ogolla & 3 others v Salome Atieno Otieno & another [2020] KEELC 700 (KLR)", Case Analysis (2020). Originating Summons dated 1st November 2017 (Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/700/eng@2020-11-11

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