Nicholas Simiyu Sululu - Deceased (Substituted by Marcella Simiyu) v Edward Wanjala & another [2020] KEELC 2348 (KLR)
The bottom line
#Kenya's Bungoma land court confirmed that 19 years of open occupation earned a buyer's family ownership even without completed Land Control Board transfers.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession for the statutory period of 12 years
Yes - the deceased purchased portions in 1980, 1982 and 1986, took possession, developed the land and occupied it openly, peacefully and exclusively for 19 years before suit, well beyond the 12-year statutory period
The court relied on the independent evidence of the area Chief (PW2) confirming the deceased's occupation since purchase, and on the 2nd defendant's admission of the claim. The 1st defendant's denial was rejected as untruthful. Occupation was found to be peaceful, exclusive and open with no interruption, calculated from 19th July 1986 when the last portion was purchased, giving 19 years to the filing of suit on 4th July 2005.
Whether the plaintiff is entitled to the specific parcel NO EAST BUKUSU/NORTH NALONDO/4297 notwithstanding that its register was not produced
Yes - since both counsel confirmed the existence of the sub-divided titles 4293 and 4297, the court concluded they exist, and found the plaintiff entitled by adverse possession to the 0.33 HA parcel 4297 registered in the 1st defendant's name
Though submissions are not evidence, the registers of the original parcel and of the new parcels were not produced by either party; both counsel, however, confirmed the sub-divided titles exist. The court therefore concluded the titles exist and that parcel 4297 was previously part of the original parcel 79 from which the deceased purchased portions between 1980 and 1986. Sub-division did not interrupt the adverse possession.
Legal principles established
#- A claimant to land by adverse possession must prove exclusive possession openly and as of right without interruption for 12 years either after dispossessing the owner or where the owner discontinued possession on his own volition
- The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the title of the proprietor of land in favour of the adverse possessor at the expiry of 12 years
- A mere change of ownership of the land claimed by the adverse possessor does not interrupt that possession, and adverse possession can be made on only a portion of the land
- Occupation to amount to adverse possession must be non-permissive, actual, open, notorious and exclusive for the statutory period
Court orders
#- 1.The plaintiff be registered as the proprietor of a portion measuring 0.33 HA comprised in land parcel NO EAST BUKUSU/NORTH NALONDO/4297 registered in the names of the 1st defendant
- 2.The 1st defendant to execute all the necessary documents to facilitate the transfer of that portion into the names of the plaintiff within 14 days of the Judgment and in default, the Deputy Registrar be at liberty to execute the said documents on behalf of the 1st defendant
- 3.The 2nd defendant, if he has not already done so, to forthwith execute all the necessary documents to facilitate the transfer of the land parcel NO EAST BUKUSU/NORTH NALONDO/4293 into the names of the plaintiff pursuant to the consent order dated 4th October 2017
- 4.The plaintiff is awarded costs of the suit to be met by the 1st defendant
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22) - claim for registration as proprietor by adverse possession; jurisdiction vested in this Court since 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Simiyu Sululu - Deceased (Substituted by Marcella Simiyu) v Edward Wanjala & another [2020] KEELC 2348 (KLR)", Case Analysis (2020). Originating Summons (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2348/eng@2020-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.