Jackson Andrew Nyabuto v David Ogega Omare [2020] KEELC 2257 (KLR)
The bottom line
#A Kenyan court confirmed that openly occupying someone's land for over 12 years — even land you bought informally — gives you legal ownership of that portion.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired title to 0.22 Ha of LR. No. Bassi/Bogetaorio II/62 through adverse possession
Yes; the Plaintiff proved open, continuous, peaceful and hostile occupation since 1998, exceeding the statutory 12-year period, and his title by adverse possession was confirmed.
The Plaintiff purchased 0.22 Ha from the Defendant's father in 1998, took possession and lived on the plot with his family. Time ran from dispossession of the true owner in 1998, so by filing on 23rd November 2017, 19 years had lapsed. Transmission of the land to the Defendant in 2016 did not interrupt the possession. The Defendant filed a reply alleging lack of capacity and ancestral land but did not testify or produce evidence, leaving the Plaintiff's claim unchallenged.
When time begins to run for adverse possession
Time runs from the date the true owner is dispossessed or discontinues possession, not from the date of full payment of the purchase price as the Plaintiff argued.
Relying on Public Trustee v Wanduru Ndegwa, the court held that the right of action accrues on the date of dispossession or discontinuance of possession. Thus the Plaintiff's argument that time ran from payment of the final instalment on 21st October 2001 was incorrect, but immaterial since occupation from 1998 already exceeded 12 years.
Effect of change of ownership on continuing adverse possession
Transmission of the land into the Defendant's name in 2016 did not interrupt the Plaintiff's adverse possession.
Following Titus Mutuku Kasuve v Mwaani Investments Limited (citing Githu v Ndeete), a title by adverse possession can be acquired for a part of the land, and a mere change of ownership of land under adverse possession does not interrupt that possession. The Plaintiff's occupation therefore continued to run against the Defendant as registered owner.
Whether the Defendant's claim of lack of capacity and ancestral land defeated the sale and the possession claim
No; the Defendant did not testify or produce any evidence to support those averments, and any action based on the 1998 purchase would in any event be time-barred under Section 7 of the Limitation of Actions Act.
Although the Defendant entered appearance and filed a response alleging his late father was illiterate and mentally incompetent and that the land was ancestral, he failed to appear at the hearing despite service and produced no evidence. The court further held that an action based on the purchase, filed more than twelve years after it, was prohibited by Section 7 of the Limitation of Actions Act.
Legal principles established
#- Time under the Limitation of Actions Act begins to run from the day the owner is dispossessed of his land, not from the day the full purchase price is paid.
- A title by adverse possession can be acquired for a part of the land, and a mere change of ownership of the occupied land does not interrupt adverse possession.
- Adverse possession requires possession that is not by force, stealth or licence, and must be adequate in continuity, publicity and extent.
Court orders
#- 1.The Plaintiff is declared to have acquired by adverse possession a portion measuring 0.22 Ha of LR. No. Bassi/Bogetaorio II/62
- 2.LR. No. Bassi/Bogetaorio II/62 be sub-divided into two portions and the portion measuring 0.22 Ha be registered in the name of the Plaintiff
- 3.The Defendant to execute all documents and take steps necessary to effect transfer of the 0.22 Ha portion to the Plaintiff
- 4.In default of execution by the Defendant, the documents be executed by the Deputy Registrar of the Court
- 5.The Defendant, his agents, servants and/or employees, is permanently restrained from interfering with the Plaintiff's peaceful possession and occupation of the 0.22 Ha portion
- 6.The Defendant to bear the costs of the suit
- Jurisdiction invoked
- Order 37 Rules 7 & 14 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Veronica Nyambura Biriri & another (as the administrators of the Estate of the Late Francis Biriri Waihenya) v Land Registrar, Kiambu[2023] KEELC 20187 (KLR)27 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Jackson Andrew Nyabuto v David Ogega Omare [2020] KEELC 2257 (KLR)", Case Analysis (2020). Originating Summons (undated/number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2257/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.