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ELCPartially AllowedELC Case No. 17 of 2019· [2020] KEELC 1954 (KLR)

Antony Otindo Kulali v Paulo Munyokho Stephen [2020] KEELC 1954 (KLR)

Environment and Land Court
24 June 2020
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court ruled that 33 years of open, uninterrupted occupation of one acre gave the buyer ownership, even though the land remained registered in the seller's name.

What this practically means

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Executive summary

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The plaintiff, Antony Otindo Kulali, sued the defendant, Paulo Munyokho Stephen, in the Environment and Land Court at Kakamega seeking a declaration that the defendant's title to one acre of L.R. No. Butsotso/Shikoti/14825 (approx. 0.74 Ha) was extinguished by adverse possession, that the defendant holds that portion in trust for him, an order for registration of the portion in his name under section 38 of the Limitation of Actions Act, consequential transfer and sub-division orders, and costs. The plaintiff testified (PW1) that he bought the suit land from the defendant under a written sale agreement, took possession in 1987, established his home and cultivated the land exclusively, openly, continuously and without force. PW2 and PW3 corroborated. The defendant was served but neither attended court nor filed a defence, leaving the plaintiff's evidence unchallenged. The court reviewed sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and applied the adverse possession principles in Wambugu v Njuguna as restated in Gerald Muriithi v Wamugunda Muriuki, and the nec vi, nec clam, nec precario test from Kimani Ruchire v Swift Rutherfords adopted in Francis Gicharu Kariri v Peter Njoroge Mairu. It found the plaintiff in exclusive, continuous and uninterrupted possession for over 12 years and held he had proved his case on a balance of probabilities. The court declared the defendant holds the one-acre portion in trust for the plaintiff, declared the plaintiff its owner by adverse possession, ordered the defendant to transfer it within 90 days, failing which the Deputy Registrar to sign the transfer documents, and made no orders as to costs.

Key legal issues

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01

Whether the plaintiff acquired title to one acre of L.R. No. Butsotso/Shikoti/14825 by adverse possession

Holding

Yes. The plaintiff proved exclusive, continuous and uninterrupted possession since 1987, openly and without force, for over 12 years; his unchallenged evidence discharged the burden on a balance of probabilities

Reasoning

The court applied the Wambugu v Njuguna principles distinguishing dispossession and discontinuance of possession, and the Kimani Ruchire test of nec vi, nec clam, nec precario. PW1 testified he bought the land and occupied one acre exclusively since 1987, building a home and cultivating it; PW2 and PW3 corroborated. The defendant was served but never filed a defence or attended court, so the evidence was unchallenged. The court found possession continuous and not broken for any temporary purposes or endeavours to interrupt it for the statutory 12-year period.

p. 3
02

Effect of an unchallenged registration under the Land Registration Act where adverse possession is claimed

Holding

Registration confers absolute and indefeasible title under sections 24(a) and 26(1) of the Land Registration Act, but such title yields to a claim of adverse possession once the statutory period is proved

Reasoning

The court acknowledged the indefeasibility of title under sections 24(a) and 26(1) of the Land Registration Act, quoting section 26's two exceptions (fraud/misrepresentation, or illegal, unprocedural or corrupt acquisition), and cited Elijah Makeri Nyangw'ra on impugning titles. It held the real question was whether the defendant held good title given the adverse possession claim. Finding the plaintiff's possession adverse for over 12 years, the court extinguished the defendant's title to the one-acre portion and declared a trust in the plaintiff's favour.

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 a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, the claimant must prove continuous, open, exclusive possession without force, secrecy or permission (nec vi, nec clam, nec precario) for at least 12 years
  • Where a claimant bought land and remained in occupation, possession becomes adverse after payment of the last instalment of the purchase price, and title vests upon 12 further years of occupation

Court orders

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  1. 1.Declaration that the defendant holds in trust for the plaintiff a portion measuring approximately one acre from L.R. No. Butsotso/Shikoti/14825 measuring approximately 0.74 Ha
  2. 2.Declaration that the plaintiff is the owner of the said one-acre portion by virtue of adverse possession, with the defendant ordered to transfer the suit land to the plaintiff within 90 days from the date of judgment
  3. 3.In default of the defendant executing the transfer, the Deputy Registrar to sign the transfer documents
  4. 4.No orders as to costs

Authorities

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Legislation

  • Limitation of Actions Actsection 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 under Article 162(2) of the Constitution (claim for title by adverse possession 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, "Antony Otindo Kulali v Paulo Munyokho Stephen [2020] KEELC 1954 (KLR)", Case Analysis (2020). ELC Case No. 17 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1954/eng@2020-06-24

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