Michael Rabare Ramoya & 2 others v Stephen Okota Barasa [2020] KEELC 930 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Res judicata vis-à-vis succession proceedings
The suit is not res judicata BSA HC P&A Cause No. 394 and 395 of 2012 because the succession court lacked jurisdiction to entertain an adverse possession claim and no such claim was pleaded there
The court examined the affidavits filed in the succession cause, which raised only purchaser/beneficiary claims, not adverse possession. Since the Probate & Administration court has no jurisdiction over adverse possession, such a claim could not have been raised in those proceedings, so section 7 of the Civil Procedure Act was not satisfied.
Ingredients of adverse possession
The plaintiffs proved adverse possession: open, continuous and uninterrupted occupation from the 1980s (or at latest 1994) far exceeding 12 years, with entry through purchase
The court held that occupation through purchase was permissive but that consent expired after six years. The respondent's own evidence placed the plaintiffs in possession when he returned in 1994, and he took no steps to file suit or retake possession until 2016, a period of 22 years. Time runs against the estate despite the death of the registered owners.
Identification of the portions claimed
Each plaintiff pleaded a specific portion, so no survey was necessary; the burden shifted to the defendant to disprove the pleaded sizes, which he failed to discharge
Save for the 1st plaintiff, who increased the size in evidence, each plaintiff was specific about the size claimed. The defendant gave smaller ground sizes but produced no survey evidence. The court therefore held the burden lay on the defendant and that he had not discharged it.
Capacity of the 2nd and 3rd plaintiffs without letters of administration
The 2nd and 3rd plaintiffs had capacity as they sued in their own right based on their own occupation, not on behalf of their deceased fathers' estates
The Originating Summons was issued on the application of the three applicants claiming adverse possession in their own names. The fathers' names featured only to explain how entry was obtained. Since their families had lived on the portions for over 12 years, their own possessory rights sustained the claim.
Legal principles established
#- In an adverse possession claim based on purchase, the validity of the sale agreement is immaterial; the relevant issues are possession, its openness, continuity and adversity for the statutory period
- Death of the registered owner does not stop time running for adverse possession against his estate or administrator
- A probate and administration cause has no jurisdiction to determine an adverse possession claim, so such a claim cannot be res judicata of succession proceedings
- A plaintiff claiming adverse possession may sue in his own capacity by virtue of occupation without letters of administration to a deceased vendor's estate
Court orders
#- 1.Declaration that the Respondent's right over L.R. No. Bukhayo/Mundika/349 and L.R. No. Bukhayo/Mundika/351 was extinguished by adverse possession
- 2.Sub-division of L.R. No. Bukhayo/Mundika/351 into 3 portions of 0.5 acres, 1.5 acres and 4.422 acres, with the 1st and 2nd plaintiffs registered over 0.5 acres and 1.5 acres respectively
- 3.Registration of the 3rd plaintiff over the whole of L.R. No. Bukhayo/Mundika/349 measuring 1.1 Ha (2.717 acres)
- 4.The Respondent ordered to execute all relevant statutory documents to facilitate the transfers, and in default the Deputy Registrar to execute the same
- 5.Perpetual injunction against the Respondent, his family members, servants, agents and those claiming through him from interfering with the plaintiffs' portions
- 6.Costs of the suit awarded to the plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under a claim for adverse possession brought by Originating Summons under the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Rabare Ramoya & 2 others v Stephen Okota Barasa [2020] KEELC 930 (KLR)", Case Analysis (2020). Civil Case No. 36 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/930/eng@2020-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.