Leonora Auma Oingo v Clementina Amoding Wakasiaka [2020] KEELC 1863 (KLR)

The court accepted that possession as a purchaser can ground adverse possession and that time ran from 1982. However, peaceful, open and uninterrupted occupation is an essential ingredient. The parties were in court over the land from 1990 (CMCC No 104 of 1990) and in numerous subsequent suits, demonstrating the possession was contested and not peaceful before the statutory 12 years expired. The prayer for adverse possession was therefore dismissed.

The only relationship was vendor-purchaser; no family or customary trust was possible. Courts do not easily imply trusts, and the onus under Section 107 of the Evidence Act lay on the defendant. The defendant breached the sale agreement by failing to pay the Kshs. 3,000/= balance and so did not come to equity with clean hands. The Kitilit constructive trust doctrine was held to be subject to the circumstances of the particular case.

The plaintiff, as registered proprietor, enjoys indefeasible title under Sections 24, 25 and 26 of the Land Registration Act and Article 40 of the Constitution, subject to overriding interests including adverse possession. Since the defendant's overriding claims failed, she became a trespasser. Trespass being actionable per se, and given absence of submissions on quantum or evidence of current value, a nominal award was appropriate.

The Chief Magistrate in CMCC No 545 of 2004 had found he lacked jurisdiction over both the trespass and adverse possession claims and dismissed both. Under Section 7 of the Civil Procedure Act, res judicata requires a prior suit heard and finalized by a competent court. A judgment by an incompetent court is of no effect and cannot bar subsequent proceedings, and no acquiescence or consent can confer jurisdiction.