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ELCPartially AllowedOriginating Summons (not stated in judgment beyond 'Originating Summons')· [2020] KEELC 1234 (KLR)

Joseph Muga Akach v Alphonce Oloo Okello [2020] KEELC 1234 (KLR)

Environment and Land Court
30 September 2020
BOBoaz N. Olao
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a family land ownership after 35 years of occupation, even though the original registered owner was dead.

What this practically means

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Executive summary

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The plaintiff, Joseph Muga Akach, sued as legal representative of the estate of his late father Ramanus Akach Muga, seeking declarations of adverse possession over land parcel South Sakwa/Bar-Kowino/1493, registered since 18 November 1985 in the name of the late Oluoch Obondo, whose estate the defendant represents. The plaintiff relied on a written agreement dated 9 January 1982 under which his father took possession of the land in exchange for four head of cattle, contending the family had remained in peaceful, open and uninterrupted occupation for over 35 years. The defendant entered appearance but filed no replying affidavit and did not attend the hearing; the claim was therefore unopposed. The court nonetheless examined whether the threshold for adverse possession was met. It held that a claim may be brought against a deceased registered proprietor's estate, and that a claimant must show exclusive, open possession as of right for over 12 years. Although one affidavit paragraph suggested occupation by consent of the registered owner - which would defeat such a claim - the court found the 1982 document, though drawn by lay persons, was an agreement of sale in exchange for cattle, and that possession under a sale is possession in whose favour limitation runs. Computing from 1982, the occupation exceeded the statutory 12-year period by a wide margin. Judgment was entered for the plaintiff: the registered proprietor's interests were declared extinguished by operation of law, the plaintiff declared entitled to registration by adverse possession, the defendant ordered to execute transfer documents within 30 days, with the Deputy Registrar empowered to execute in default, and the Land Registrar directed to effect the change in the register. There were no orders as to costs.

Key legal issues

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01

Whether the plaintiff established adverse possession of the suit property

Holding

Yes - the plaintiff's family occupied the land for 35 years from 1982 under an agreement of sale, well in excess of the 12-year statutory period, entitling him to be registered as proprietor

Reasoning

The court found the 1982 written agreement, though drawn by lay persons, amounted to a sale of the land in exchange for cattle. Possession passed to the plaintiff's father and family in 1982 and continued openly and peacefully. Computing from 1982 to 2017 yields 35 years, exceeding the statutory 12 years. Although one paragraph of the affidavit suggested permissive occupation, the agreement showed possession under a sale, in whose favour limitation can run.

p. 3
02

Whether occupation with the consent of the owner defeats an adverse possession claim

Holding

The court noted that possession with the owner's consent cannot found adverse possession, but distinguished it on the basis that the entry was pursuant to a sale agreement

Reasoning

Counsel's reliance point: the plaintiff deponed that his family entered with consent and permission of the registered owner, which would ordinarily defeat adverse possession per Jandu v Kirpal. However, paragraph 4 of the affidavit and the 1982 agreement showed possession under a sale of land, and the court treated the claim as a purchaser's possession in which limitation runs.

p. 2

Legal principles established

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  • A claim for adverse possession can be made against the estate of a deceased registered proprietor
  • A purchaser in possession of land who has paid the purchase price is a person in whose favour the period of limitation can run

Court orders

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  1. 1.Declared that the interests of Oluoch Obondo in land parcel SOUTH SAKWA/BAR-KOWINO/1493 have been extinguished by operation of law
  2. 2.Declared that the plaintiff has acquired and is entitled to be registered as proprietor of the suit property by way of adverse possession
  3. 3.Defendant to execute all relevant documents to facilitate registration of the suit property in the plaintiff's names within 30 days
  4. 4.In default, the Deputy Registrar of the Court at liberty to execute all such documents on behalf of the defendant
  5. 5.Land Registrar to delete the name Oluoch Bondo from the register and insert the name Joseph Muga Akach

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 37

Cases cited (6)

  • KARUNTIMI RAIJI .V. M’MKINYA M’ITUNGA
    2013 eKLR
  • WAMBUGU .V. NJUGUNA
    1983 KLR 174
  • KIMANI RUCHINE .V. SWIFT RUTHERFORDS & CO LTD
    1980 KLR 10
  • JANDU .V. KIRPAL
    1975 E.A 225
  • PUBLIC TRUSTEE .V. WANDURU
    1984 KLR 314
  • KASUVE .V. MWAANI INVESTMENT LTD & OTHERS
    2004 1 KLR 184
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - application to the High Court (ELC) for registration as proprietor by adverse possession

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, "Joseph Muga Akach v Alphonce Oloo Okello [2020] KEELC 1234 (KLR)", Case Analysis (2020). Originating Summons (not stated in judgment beyond 'Originating Summons'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1234/eng@2020-09-30

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