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ELCPartially AllowedCivil Case No. 36 of 2016· [2020] KEELC 930 (KLR)

Michael Rabare Ramoya & 2 others v Stephen Okota Barasa [2020] KEELC 930 (KLR)

Environment and Land Court
29 October 2020
4,736 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The three plaintiffs brought an Originating Summons under the Limitation of Actions Act claiming the respondent's title to L.R. Bukhayo/Mundika/349 and a portion of Bukhayo/Mundika/351 had been extinguished by adverse possession. Each claimed entry through purchase in the 1980s: the 1st plaintiff bought 0.5 acres from the late Mingili Orada in 1983, the 2nd plaintiff's father bought 1.5 acres from the respondent in 1987, and the 3rd plaintiff's father bought the whole of parcel 349 in 1981. The respondent, who derived title through inheritance as administrator of the deceased registered owners' estates, denied the sales, denied the applicants' capacity, and argued the suit was res judicata of succession causes, that unwritten and unproved sales were nullities under section 3(3) of the Law of Contract Act, and that the 2nd and 3rd plaintiffs needed letters of administration. The court framed three questions: res judicata, proof of adverse possession, and capacity. It held the succession court lacked jurisdiction over adverse possession so the suit was not barred; that possession through purchase was permissive but time ran against the respondent, who found the plaintiffs in occupation in 1994 and took no legal steps until 2016; that the pleaded portions were sufficiently identified with the burden on the defendant to disprove the sizes; and that the 2nd and 3rd plaintiffs had capacity by virtue of their own occupation. Judgment was entered for the plaintiffs as prayed, limited to the pleaded 0.5 acres for the 1st plaintiff, with costs to the plaintiffs.

Key legal issues

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01

Res judicata vis-à-vis succession proceedings

Holding

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

Reasoning

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.

p. 4
02

Ingredients of adverse possession

Holding

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

Reasoning

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.

p. 4
03

Identification of the portions claimed

Holding

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

Reasoning

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.

p. 5
04

Capacity of the 2nd and 3rd plaintiffs without letters of administration

Holding

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

Reasoning

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

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  • 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

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  1. 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. 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. 3.Registration of the 3rd plaintiff over the whole of L.R. No. Bukhayo/Mundika/349 measuring 1.1 Ha (2.717 acres)
  4. 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. 5.Perpetual injunction against the Respondent, his family members, servants, agents and those claiming through him from interfering with the plaintiffs' portions
  6. 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

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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, "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.