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ELCDismissedELC Case No. 47 of 2019· [2020] KEELC 1974 (KLR)

Suleiman Mukabana Masibayi v Musa Omoto Ochomo [2020] KEELC 1974 (KLR)

Environment and Land Court
24 June 2020
1,471 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 dismissed an adverse possession claim because the claimant could not prove who actually owned the land he had occupied.

What this practically means

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Executive summary

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The plaintiff, Suleiman Mukabana Masibayi, brought an originating application before the Environment and Land Court at Kakamega claiming 1 ½ acres of Land Parcel No. S/Wanga/Ekero/978 by adverse possession. He asserted that on 17th January 2001 he purchased the portion from the defendant, took vacant possession, and had since cultivated it, built a home on it and enjoyed open, continuous, notorious and exclusive possession for over twelve years. He sought declarations that the defendant's title over the portion was extinguished by operation of law, that the registration of the defendant was unlawful, and an order that the portion vest in him under section 38 of the Limitation of Actions Act. The defendant was served but filed no defence. The court considered sections 24(a) and 26(1) of the Land Registration Act on the indefeasibility of registered title, and authorities on adverse possession including Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords & Co. Ltd., which require proof of dispossession or discontinuance of the owner's possession for twelve years, or adverse possession running from payment of the last instalment of the purchase price, with possession held nec vi, nec clam, nec precario. On the evidence, the green card of the suit land was issued on 3rd April 2014 with its last entry in 2013, a prior ruling had ordered the title cancelled, and it was unclear whether the land was subject to a caution by compulsory acquisition. The court found that ownership of the suit land was not established, held that the plaintiff had failed to prove his case on a balance of probabilities, and dismissed the claim with no orders as to costs as the suit was undefended.

Key legal issues

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01

Whether adverse possession was proved

Holding

The claim failed because ownership of the suit land could not be ascertained; the green card's last entry was in 2013 and a prior ruling had ordered cancellation of the title, making it unclear what land the plaintiff possessed adversely

Reasoning

The court examined the green card of the suit land, noting it was issued on 3rd April 2014 with the last entry in 2013. A ruling dated 15th April 2010 had ordered the title cancelled and 1 acre transferred to another applicant, and it was unclear whether the land was subject to a caution by compulsory acquisition. With ownership unresolved, the essential foundation of an adverse possession claim - a known owner whose title could be extinguished - was absent, so the claim could not stand.

p. 2
02

The legal requirements for acquisition of title by adverse possession

Holding

The claimant must prove dispossession or discontinuance of possession by the owner for the statutory period of 12 years, and possession must be nec vi, nec clam, nec precario

Reasoning

Relying on Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, the court set out that the title holder must have been dispossessed or discontinued possession for the statutory period, and that where the claim rests on a purchase agreement, adverse possession runs from payment of the last instalment. The plaintiff did not establish these elements against an ascertainable owner.

p. 2
03

Indefeasibility of registered title under the Land Registration Act

Holding

Registration vests absolute ownership; a title may only be challenged on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, as explained in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another, that the law is extremely protective of title and permits challenge only on the two statutory grounds. The plaintiff did not bring his claim within either exception.

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
  • Where a claimant pleads a right to land under an agreement and alternatively seeks adverse possession, possession becomes adverse after payment of the last instalment of the purchase price, and title is acquired on occupation for at least 12 years thereafter
  • A claimant must prove possession as of right - nec vi, nec clam, nec precario

Court orders

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  1. 1.The plaintiff's claim for adverse possession is dismissed
  2. 2.No orders as to costs as the suit was undefended

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Act (Cap 22)Section 38

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 a claim for 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, "Suleiman Mukabana Masibayi v Musa Omoto Ochomo [2020] KEELC 1974 (KLR)", Case Analysis (2020). ELC Case No. 47 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1974/eng@2020-06-24

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