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ELCAllowedOriginating Summons dated 19th October 2015 (formerly at Kisii Environment and Land Court)· [2020] KEELC 1429 (KLR)

Benson Akumu Piemo v Hannie Nafututu Ondaye & another [2020] KEELC 1429 (KLR)

Environment and Land Court
28 July 2020
2,550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court awarded a buyer land title after 25 years of occupation, ruling that selling it to someone else later didn't matter.

What this practically means

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Executive summary

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The plaintiff sued by originating summons dated 19th October 2015, later deemed a plaint by order of Mutungi J on 11th April 2016, claiming title to LR No. Central Karachuonyo/Konyango/589 (0.14 Ha, Homa Bay County) by adverse possession. He alleged that on 15th April 1990 he purchased the land from the late Stephen Ondaye Adwe and the 1st defendant, took possession, developed it, but the vendors never transferred it; instead the 1st defendant transferred it to the 2nd defendant on 22nd April 2015. He sought a declaration that the 2nd defendant's right to recover the land was extinguished, registration of the land in his name, an injunction, and execution of transfer documents by the Deputy Registrar. The 1st defendant, widow and administratrix of the deceased, denied any sale, alleged forgery, and asserted she lawfully transferred the land to the 2nd defendant, who claimed to be a bona fide purchaser. The court framed the issues around the ingredients of adverse possession. It found the plaintiff's open, notorious and continuous possession since about 1990 proved by his testimony, PW2's corroboration and photographic evidence, hardly displaced by four defence witnesses who spoke only to the sale to the 2nd defendant. It held adverse possession must be of the whole or a defined portion; that mere change of ownership does not interrupt adverse possession; and that constructive trust and equitable estoppel override the want of Land Control Board consent. Judgment was entered for the plaintiff on all five reliefs sought, with costs to the defendants.

Key legal issues

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01

Entry and open, notorious possession

Holding

The plaintiff proved open and notorious possession of the suit property through his evidence, PExhibit 4 (photographs) and PW2's corroborating testimony, hardly displaced by the defence evidence.

Reasoning

The court considered the originating summons grounds, the supporting affidavit and PExhibit 4, which showed the plaintiff's entry and development of the land. DW1 admitted she lives elsewhere, does not cultivate the suit land, has no photographs of it and never reported the matter to the police. The defence witnesses spoke only to the sale to the 2nd defendant, leaving the plaintiff's possession undisturbed in evidence.

p. 3
02

Duration and non-discontinuance of possession

Holding

The plaintiff had been in continuous possession and occupation exceeding 12 years, with no discontinuance by the defendants.

Reasoning

PW1 testified he had lived on the land since 1990, planted euphobia trees, erected boundary posts, built a house; PW2 corroborated the pit latrine, borehole, ploughing and planting of crops. Their testimony was not displaced by DW1 to DW4, whose evidence related only to DW1's ownership and sale to the 2nd defendant. Possession therefore ran continuously beyond the 12-year threshold.

p. 3
03

Effect of transfer to the 2nd defendant and lack of Land Control Board consent

Holding

The transfer of the suit property to the 2nd defendant did not interrupt adverse possession, and the want of Land Control Board consent did not defeat the claim because constructive trust and equitable estoppel override that requirement.

Reasoning

DW1 transferred and registered the property to the 2nd defendant in 2015, but per Githu v Ndeete a mere change of ownership does not interrupt adverse possession. Although the 1990 sale lacked Land Control Board consent and was void under section 7 of the Land Control Act, the court applied the William Kipsoi Sigei decision that constructive trust and equitable estoppel override the consent requirement. Ouster and adverse possession were accordingly established.

p. 4

Legal principles established

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  • Adverse possession requires open, peaceful and uninterrupted possession for at least 12 years, displacing the registered owner's right and title.
  • Adverse possession must be of the whole or a defined portion of land.
  • A mere change of ownership of the suit property does not interrupt adverse possession.
  • The equitable doctrines of constructive trust and equitable estoppel override the requirement for Land Control Board consent in a controlled transaction.

Court orders

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  1. 1.A declaration that the 2nd defendant's rights to recover LR No. Central Karachuonyo/Konyango/589 are barred and extinguished by the plaintiff's open, peaceful and continuous occupation for over 25 years
  2. 2.An order that the plaintiff be registered as proprietor of the whole of LR No. Central Karachuonyo/Konyango/589 in place of the 2nd defendant
  3. 3.A permanent injunction restraining the defendants, jointly and severally, their agents, servants and/or employees from interfering with the plaintiff's peaceful possession and occupation of the suit property
  4. 4.An order directing the Deputy Registrar and/or Executive Officer of the High Court to execute the transfer instrument and all attendant documents to facilitate transfer and registration of the suit property to the plaintiff
  5. 5.Costs of the originating summons to be borne by the defendants

Authorities

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Legislation

  • Land Actsection 38
  • Land Control Act (Cap 302 Laws of Kenya)sections 6, 7 and 8
  • Civil Procedure Act (Chapter 21 Laws of Kenya)section 27; section 3A
  • Constitution of Kenya, 2010Articles 7(3)(b), 159(2)(b) and (d)
  • Environment and Land Court Act, 2015sections 3 and 19

Cases cited (17)

  • Harrison Ngige Kaara and another -vs- Shadrack Njanja Kaara
    Civil Appeal No. 79 of 1996, Nairobi
  • Mwinyi Hamisi Ali -vs- Philemon Mwaisaka Wawaka
    Civil Appeal No. 125 of 1997, Mombasa
  • Githu v Ndeete
    (1984) KLR 776
  • Wanjiku Kinuthia and another -vs- Stephen Kinooro Kamau and another
    NBI HCCC No. 2360 of 1995
  • Great Lakes Company (U) Ltd -vs- Kenya Revenue Authority
    (2009) KLR 720
  • Elijah O. L. Opar -vs- Tobias Odhambo Obach
    (2019) eKLR
  • Wembugu -vs- Njuguna
    (1983) KLR 172
  • Ngati Farmers Company Cooperative Society Ltd -vs- Ledidi and 15 others
    (2009) KLR 331
  • Muthuita -vs- Wanoe and 2 others
    (2008) 1 KLR (G & F) 1024
  • Gatimu Kinguru -vs- Muya Gathangi
    (2008) 1 KLR 1007 at 1015 (G&F)
  • Shimuya Peter and 3 others -vs- Mary Anyango Ameka and another
    (2018) eKLR
  • Mtana Lewas -vs- Kahindi Ngala Mwagandi
    (2015) eKLR
  • Teresa Wachuka Gachira -vs- Joseph Mwangi Gachira
    (2009) eKLR
  • John Mwatela Shiede -v- Vitahbhai Bhulabhai Patel
    (2010) eKLR
  • Karuki -vs- Kariuki
    (1983) KLR 227
  • William Kipsoi Sigei -vs- Kipkoech Arusei and another
    Civil Appeal No. 54 of 2014 (2019) eKLR, Nairobi
  • Ahmed Abdulkarim -vs- Member for Lands and Mines
    (1958) EA 436, 441
Jurisdiction invoked
Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act; Sections 3 and 19 of the Environment and Land Court Act, 2015

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, "Benson Akumu Piemo v Hannie Nafututu Ondaye & another [2020] KEELC 1429 (KLR)", Case Analysis (2020). Originating Summons dated 19th October 2015 (formerly at Kisii Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1429/eng@2020-07-28

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