Sylvester O. Ogolla & 3 others v Salome Atieno Otieno & another [2020] KEELC 700 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Registration of the suit property in a name other than the plaintiffs'
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.
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 It referred to Sections 24, 25 and 26 of the Land Registration Act and Sections 27 and 28 of the repealed Registered Land Act, holding the claims were over defined portions as in Muthuita v Wanoe.
Open, exclusive and notorious possession adverse to the owner's title
The plaintiffs took immediate possession upon purchase, built and cultivated their portions, which constituted open and notorious possession amounting to ouster.
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.
Continuous occupation for over twelve years
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.
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.
Equity in favour of purchasers in possession
The enforceable sale contracts between deceased 2 and the plaintiffs engaged principles of equity in aid of the purchasers who failed to obtain transfer.
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.
Uncontroverted evidence and burden of proof
The defendants, though duly served, failed to defend the suit; the plaintiffs' case was therefore established on a balance of probabilities.
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).
Legal principles established
#- 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
#- 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.Declaration that the 1st plaintiff acquired title by adverse possession to 1 ha of LR No. Suna East/Wasweta I/7624
- 3.Declaration that the 2nd plaintiff acquired title by adverse possession to 2 1/2 ha of the suit property
- 4.Declaration that the 3rd plaintiff acquired title by adverse possession to 0.24 ha of the suit property
- 5.Declaration that the 4th plaintiff acquired title by adverse possession to 1 acre of the suit property
- 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.Order that the 1st and 2nd defendants bear the costs of the case
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.