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ELCPartially AllowedELC Case No. 74 of 2019· [2020] KEELC 1623 (KLR)

Protus Simiyu Wabwire v Regina Refa Amis [2020] KEELC 1623 (KLR)

Environment and Land Court
28 July 2020
1,560 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A man who occupied land openly for over 12 years won ownership from the registered owner, who never contested the case.

What this practically means

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Executive summary

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The plaintiff claimed title to land parcel Kakamega/Soy/387 (2.43 hectares), registered in the name of the defendant, by adverse possession. He sought declarations that the defendant's title was extinguished after twelve years and that she holds the land in trust for him, plus an order under section 38 of the Limitation of Actions Act cancelling the defendant's registration and substituting his own, with costs. The plaintiff testified that he bought the land in 1994, produced a sale agreement, was shown the suit land and moved in that year, and has lived there since. The defendant, though served (including by newspaper advertisement), neither attended court nor filed a defence, leaving the plaintiff's evidence unchallenged. The court set out the Land Registration Act provisions on indefeasibility of title (sections 24(a) and 26(1)) and applied authorities on adverse possession, including Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, requiring nec vi, nec clam, nec precario possession for the statutory period. Finding that the plaintiff had been in exclusive, continuous and uninterrupted possession for over twelve years, the court declared the defendant a trustee of the parcel, declared the plaintiff owner by adverse possession, ordered the defendant to transfer the land within ninety days, failing which the Deputy Registrar to execute the transfer documents, and made no orders as to costs.

Key legal issues

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01

Whether the plaintiff acquired Kakamega/Soy/387 by adverse possession

Holding

Yes - the plaintiff proved open, continuous, exclusive and uninterrupted possession for over 12 years, and his unchallenged evidence established the claim on a balance of probabilities

Reasoning

The plaintiff testified that he bought the land in 1994, produced the sale agreement, was shown the land and moved in in 1994, living there to date. The defendant, though served, did not attend court or file a defence, so the plaintiff's evidence was unchallenged. Applying the Wambugu v Njuguna and Kimani Ruchire principles, the court found the possession was continuous, open, exclusive and not broken for any temporary purposes for a period in excess of 12 years.

p. 2
02

Whether the defendant's registered title is defeated by the adverse possession claim

Holding

Yes - the defendant's title is extinguished and she holds the land in trust for the plaintiff, who is entitled to be registered as owner

Reasoning

Although registration vests absolute ownership under sections 24(a) and 26(1) of the Land Registration Act, title may be challenged where acquired illegally, unprocedurally or through a corrupt scheme, and adverse possession for the statutory period extinguishes the proprietor's title. The court found the plaintiff's possession exceeded 12 years and therefore declared the defendant a trustee and ordered transfer to the plaintiff.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, possession must be nec vi, nec clam, nec precario - no force, no secrecy, no persuasion - and must be continuous for the statutory period
  • Where a claimant bought land and seeks adverse possession in the alternative, possession becomes adverse after payment of the last installment of the purchase price

Court orders

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  1. 1.Declaration that the defendant/respondent holds in trust for the plaintiff/applicant land parcel No. Kakamega/Soy/387
  2. 2.That the plaintiff/applicant be declared the owner of land parcel No. Kakamega/Soy/387 by virtue of adverse possession
  3. 3.That the defendant/respondent be ordered to transfer the suit land to the plaintiff/applicant within 90 days, in default the Deputy Registrar to sign the transfer documents
  4. 4.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22section 38
  • Land Registration Actsection 24(a)
  • Land Registration Actsection 26(1)

Cases cited (5)

  • Elijah Makeri Nyangw'ra -vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; claim under 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, "Protus Simiyu Wabwire v Regina Refa Amis [2020] KEELC 1623 (KLR)", Case Analysis (2020). ELC Case No. 74 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1623/eng@2020-07-28

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