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ELCDismissedOriginating Summons dated 23rd March 2012 (number not stated in judgment)· [2020] KEELC 1485 (KLR)

Alexander Ugala Odenyo v Benta Akinyi Ochieng & another [2020] KEELC 1485 (KLR)

Environment and Land Court of Kenya
22 July 2020
2,797 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 dismissed a 12-year land claim because the occupier had entered with the owner's permission, and the owner sued to reclaim the land in time.

What this practically means

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Executive summary

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This was an originating summons dated 23rd March 2012, brought under Order 37 Rules 7 and 14 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act, in which the plaintiff claimed title to land parcel Kamagambo/Kameji/951 (about 1.1.0 Ha), a subdivision of the original parcel Kamagambo/Kameki/4, by adverse possession. He relied on a sale agreement dated 9th May 2000 with Richard Philip Ogola (Deceased 1), administrator of Ogola Agoro (Deceased 2), the registered proprietor, and sought a declaration extinguishing the defendants' title, registration as proprietor, and an injunction. The 1st defendant, administrator of Deceased 1's estate, opposed the claim in a replying affidavit, asserting that the 2nd defendant's husband had bought the land from Deceased 2, and that Deceased 2 had merely permitted the plaintiff to occupy, with the land transferred to the 2nd defendant in January 2012. The defendants called no evidence and filed no submissions. The court framed three issues drawn from adverse possession jurisprudence: open and peaceful entry without permission, uninterrupted possession for at least 12 years, and dispossession extinguishing the proprietor's title. It found that the plaintiff entered with the owner's permission, that suits asserting ownership filed in 2005 and 2006 interrupted time before the 12-year period ran, and that the plaintiff was on a balance of probabilities unable to prove the essentials of adverse possession despite unchallenged testimony. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Open, peaceful and non-permissive entry

Holding

Plaintiff entered the suit land with the permission of the registered owner (Deceased 2), defeating a claim of adverse possession

Reasoning

PW1 testified he entered under a sale agreement with Deceased 1, and asserted that Deceased 2, the registered proprietor, allowed him to enter and occupy. Where entry is permissive, possession is not adverse. The court held that once permission is established, adverse possession cannot be construed in favour of the occupier.

p. 4
02

Uninterrupted possession for 12 years

Holding

Time was interrupted by suits asserting ownership filed in 2005 and 2006 before the prescribed period elapsed

Reasoning

The court found from PExhibit 6 and BAO2 and BAO3 that the 2nd defendant and her husband asserted ownership rights over the suit land by suits filed in 2005 and 2006. Since the plaintiff entered in 2000 and suit was filed in 2012, the prescribed period had not run uninterrupted; filing suit to recover land stops time under Section 38.

p. 4
03

Dispossession and extinguishment of the registered proprietor's title

Holding

The registered proprietor had not been dispossessed; steps were taken to assert title before any dispossession matured

Reasoning

PW1 admitted being surprised by the 2nd defendant's entry, and Deceased 1 had asserted title through proceedings in 2005 before any termination of permission. Possession must be unbroken with no attempt to interrupt it for adverse possession to prevail. The plaintiff therefore failed on the third ingredient.

p. 4
04

Burden of proof on unchallenged evidence

Holding

Even unchallenged evidence does not relieve the plaintiff of the burden of proving the claim

Reasoning

Although the evidence of PW1 and PW2 stood unchallenged, the court applied Kirugi v Kabiya holding that the burden is always on the plaintiff to prove his case on a balance of probabilities, a burden not lessened where the case proceeds by formal proof. On that standard the plaintiff failed.

p. 4

Legal principles established

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  • Adverse possession requires open, peaceful entry without permission, uninterrupted possession for at least 12 years, and dispossession of the registered proprietor extinguishing title
  • Possession must be of the whole or a defined portion of the land
  • The filing of a suit to recover land stops time running for purposes of adverse possession under Section 38 of the Limitation of Actions Act
  • Entry with the owner's permission cannot ground adverse possession
  • The burden of proof remains on the plaintiff on a balance of probabilities even where evidence is unchallenged or heard by formal proof

Court orders

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  1. 1.The plaintiff's originating summons dated 23rd March 2012 is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Civil Procedure Rules, 2010Order 37 Rules 7 and 14
  • Civil Procedure Rules, 2010Order 3 Rule 2
  • Civil Procedure ActSection 3A
  • Environment and Land Court Act, 2015 (2011)Sections 3 and 19
  • Constitution of Kenya, 2010Articles 7(3)(b), 159(2)(b) and (d)

Cases cited (13)

  • Githu v Ndeete
    (1984) KLR 776
  • Njuguna Ndatho - Masai Itumo and 2 others
    Civil Appeal Number 231 of 1999 (2002) 2 KLR 637
  • Galaxy Paints Co. Ltd v Falcon Grounds Ltd
    (2002) 2 EA 385
  • Elijah O. L. Opar versus Tobias Odhiambo Abach
    (2019) eKLR
  • Muthuita -vs- Wanoe and 2 others
    (2008) 1 KLR (GeF) 1024
  • Gatimu Kinguru v Muya Gathangi
    (2008) 1 KLR 1007
  • Geoffrey Shimonya Peter and 3 others –vs- Mary Anyango Ameke and another
    (2018) eKLR
  • Kimani Ruchine –vs- Swift Rutherford Company Ltd and another
    (1976-80) KLR 1500
  • Titus Ong'ang'a Nyachieo versus Martin Okioma Nyauma and 2 others
    (2017) eKLR
  • Wanyoike Gathure v beverly
    (1965) EA 514
  • Virginia Wanjiku Mwangi versus David Mwangi Jotham Kamau
    (2013) eKLR
  • Samwel Miki Waweru versus Jane Njeri Richu
    (2004) eKLR
  • Kirugi and another versus Kabiya and 3 others
    (1987) KLR 347
Jurisdiction invoked
Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010; Section 3A of the Civil Procedure Act (Cap 21); Sections 3 and 19 of the Environment and Land Court Act, 2015; claim brought under Order 37 Rules 7 and 14 Civil Procedure Rules, 2010 and Section 38 of 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, "Alexander Ugala Odenyo v Benta Akinyi Ochieng & another [2020] KEELC 1485 (KLR)", Case Analysis (2020). Originating Summons dated 23rd March 2012 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1485/eng@2020-07-22

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