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ELCAllowedOriginating Summons dated 7th February 2019 (Migori)· [2020] KEELC 1493 (KLR)

Samwel Nyabichere Muchumerson v Daniel Sereria Makara & 3 others [2020] KEELC 1493 (KLR)

Environment and Land Court of Kenya
28 July 2020
2,341 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Migori court gave a buyer 5 acres he'd lived on and farmed for 40 years, even though the land was never formally transferred to him.

What this practically means

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Executive summary

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The plaintiff commenced suit by originating summons under Order 37(7) of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, claiming 5 acres out of Bukira/Bwisaboka/823 (a subdivision of Bukira/Bwisaboka/136) by adverse possession. He deposed that he purchased the land from the deceased, Makara Sereria Wangi, in 1975 and 1977 with land control board consent, took possession, built a permanent home and cultivated it, but the deceased died before transfer. His earlier suit, Kisii HCCC No. 3 of 1994, abated on the deceased's death, and a citation in a succession cause against the administrators failed to procure transfer. By consent, the originating summons and replying affidavit were treated as plaint and defence. The defendants admitted the plaintiff's title only to his homestead portion of about half an acre, denying the balance. Following the Galaxy Paints principle, the court distilled the ingredients of adverse possession from Wambugu v Njuguna and Kasuve v Mwaani Investments. It found the plaintiff entered the land openly under a purchase, fenced, built and cultivated it, and had possessed it since 1975/1977, far beyond twelve years. The court held continued occupation by a purchaser even under a void transaction amounts to adverse possession and invoked constructive trust and estoppel per Kitilit v Kibet. Judgment was entered for the plaintiff against the defendants jointly and severally in terms of all four orders sought, and a certified copy of the judgment was ordered to be availed to the Kehancha Senior Principal Magistrate's court in a related transferred suit to guide it.

Key legal issues

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01

Whether the plaintiff proved open, peaceful possession of the 5 acres without permission

Holding

The court found the plaintiff bought the land, erected a permanent home, fenced and cultivated it, and even the defendants admitted possession of a 100 by 200 feet homestead portion

Reasoning

The court relied on sale agreements, land control board consent and certificate of search (PEXhibits 1 to 4) to find the plaintiff entered the land pursuant to purchase from the deceased. The plaintiff's testimony in chief and cross-examination confirmed fencing, cultivation and a permanent home. The defendants' own replying affidavit and DSM3 admitted possession of at least half an acre, confirming occupation of the suit land.

p. 3
02

Whether the plaintiff had been in possession for over twelve years

Holding

Possession since 1975/1977, roughly forty years, exceeded the twelve-year prescription period; even occupation of half an acre since at least 1998 sufficed

Reasoning

The plaintiff deposed to possession since 1975 and 1977 when he purchased the land. The defendants placed occupation at 1998. Either way the statutory period was far exceeded. The court also invoked the principle that a purchaser in continued occupation of land, even under a void transaction, is in adverse possession, and that constructive trust and estoppel operate in favour of a purchaser who paid the full price.

p. 3
03

Whether the title of the estate had been extinguished and transfer should issue

Holding

The ingredients of adverse possession were established; title was extinguished and DW1 was to execute transfer of the suit land to the plaintiff

Reasoning

Having found entry, open possession and occupation for over twelve years, the court held that prescription had extinguished the estate's title and the administrators were dispossessed. Judgment was entered jointly and severally against the defendants in terms of the four questions posed in the originating summons, including demarcation and registration directions.

p. 3

Legal principles established

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  • Possession for purposes of adverse possession may take different forms, such as fencing or cultivation
  • Continued occupation by a purchaser from the time of even a void transaction amounts to adverse possession
  • Lack of land control board consent does not preclude the court from giving effect to equitable principles, in particular the doctrine of constructive trust

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally in terms of orders (a), (b), (c) and (d) of the originating summons dated 7th February 2019
  2. 2.The plaintiff declared owner of the 5 acres portion of the suit land to the exclusion of the defendants
  3. 3.A certified copy of the judgment to be availed in Migori ELC case No. 1 of 2017, transferred to Kehancha Senior Principal Magistrate's court, to guide the trial court in that matter

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37(7)
  • Limitation of Actions ActSection 38
  • Constitution of Kenya, 2010Article 159(2)(b); Articles 7(3)(b), 159(2)(b) and (d)
  • Civil Procedure ActSection 3A
  • Environment and Land Court Act, 2015Sections 3 and 19
  • Land Control ActSection 6

Cases cited (10)

  • Galaxy Paints Co. Ltd –vs- Falcon Grounds Ltd
    (2000) 2 EA 385
  • Wambugu –vs- Njuguna
    (1983) KLR 172
  • Kasuve v Mwaani Investments Ltd and 4 others
    (2004) 1 KLR 184
  • Elijah V. L Opar v Tobias Odhiambo Abach
    (2019) eKLR
  • Titus Ong’ang’a Nyachieo –vs- Martin Okoma Nyauma and 3 others
    (2017) eKLR
  • West Bank Estates Ltd –vs- Arthur
    (1966) 3 WLR 750
  • Muthuita –vs- Wanoe and 2 others
    (2008) 1 KLR (G&F) 1024
  • Stephen Waweru –vs- Jane Richu
    (2004) eKLR
  • William Kipsoi Sigei –vs- Kipkoech Arusei and another
    (2019) eKLR
  • willy Kimutai Kitilit –vs- Micheal Kibet
    (2018) eKLR
Jurisdiction invoked
Sections 3 and 19 of the Environment and Land Court Act, 2015 and Section 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; claim originally brought under Order 37(7) of the Civil Procedure Rules, 2010 as read with Section 38 of the Limitation of Actions Act, Chapter 22 Laws of Kenya

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, "Samwel Nyabichere Muchumerson v Daniel Sereria Makara & 3 others [2020] KEELC 1493 (KLR)", Case Analysis (2020). Originating Summons dated 7th February 2019 (Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1493/eng@2020-07-28

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