Samwel Nyabichere Muchumerson v Daniel Sereria Makara & 3 others [2020] KEELC 1493 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff proved open, peaceful possession of the 5 acres without permission
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
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.
Whether the plaintiff had been in possession for over twelve years
Possession since 1975/1977, roughly forty years, exceeded the twelve-year prescription period; even occupation of half an acre since at least 1998 sufficed
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.
Whether the title of the estate had been extinguished and transfer should issue
The ingredients of adverse possession were established; title was extinguished and DW1 was to execute transfer of the suit land to the plaintiff
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.
Legal principles established
#- 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
#- 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.The plaintiff declared owner of the 5 acres portion of the suit land to the exclusion of the defendants
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.