Richard Nyongesa Wabongo v Musa Omoto Ochomo [2020] KEELC 1937 (KLR)
The bottom line
#A Kakamega court dismissed a land claim by adverse possession because the claimant couldn't clearly prove who owned the land or his 12 years of possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff established title by adverse possession
The claim failed because ownership of the suit land could not be ascertained and the plaintiff did not prove the required adverse possession
The court applied the Wambugu v Njuguna and Kimani Ruchire principles requiring proof of dispossession or discontinuance of the owner's possession for twelve years, and possession nec vi, nec clam, nec precario. The green card showed the title issued on 3 April 2014 with a last entry in 2013, and prior cancellation orders left the current position of the land unclear, so ownership could not be established.
Whether the plaintiff discharged the burden of proof on a balance of probabilities
He did not; the suit, though undefended, still required proof of the claim
The defendant was served but filed no defence and adduced no evidence. The court nonetheless assessed the plaintiff's evidence and documents independently and concluded that the claim had not been proved to the required standard, dismissing the suit.
The protective effect of registration under the Land Registration Act
Sections 24(a) and 26(1) confer absolute and indefeasible title, subject only to fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
The court set out sections 24(a) and 26(1) of the Land Registration Act and relied on Elijah Makeri Nyangw'ra, noting that title is extremely protected and challengeable only on the two statutory grounds.
Legal principles established
#- A claimant seeking title by adverse possession must prove possession as of right - nec vi, nec clam, nec precario (no force, no secrecy, no persuasion) - for the statutory period
- Where a claimant pleads the right to land under an agreement and alternatively seeks adverse possession, possession becomes adverse after payment of the last installment of the purchase price, and 12 years' occupation after such payment is required
- 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
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.No orders as to costs, the suit having been undefended
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, in a claim for adverse possession under section 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Nyongesa Wabongo v Musa Omoto Ochomo [2020] KEELC 1937 (KLR)", Case Analysis (2020). ELC Case No. 35 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1937/eng@2020-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.