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ELCPartially AllowedBungoma ELC Originating Summons (case number not stated in judgment)· [2020] KEELC 2391 (KLR)

Simon Khaemba Mwanja – Deceased (substituted with his son Kennedy Wakoto Khaemba) v Jamin Wasike Khaemba & another [2020] KEELC 2391 (KLR)

Environment and Land Court
27 May 2020
BOBoaz N. Olao
3,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court granted a land buyer ownership of 3 acres after 30 years of occupation, but only because he sued all the right owners.

What this practically means

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Executive summary

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The plaintiff, substituted for his deceased father Simon Khaemba Mwanja, claimed 10 acres out of land parcel East Bukusu/North Kanduyi/748 by adverse possession, alleging the late Khaemba Mumelo sold him the land under agreements dated 19 December 1982 (3.7 acres), 18 April 1984 (5¼ acres) and 26 April 1991 (1 acre), took occupation in 1982, and that Mumelo migrated to Kitale and died before transfer. The defendants denied the sale, relying on lack of Land Control Board consent and asserting the land was ancestral. The court noted Kiswahili is an official language under Article 7 of the Constitution and admitted the Kiswahili agreement notwithstanding the 2012 amendment restricting the ELC's language to English. With the defence closed for non-attendance, the plaintiff's evidence stood uncontroverted, corroborated by Omollo J's earlier interlocutory ruling and the defendants' own concessions of occupation. Applying the Limitation of Actions Act and adverse possession jurisprudence, the court found over 12 years of open, continuous possession, extinguishing the registered owners' title. However, the land was registered in the names of eight co-proprietors and only two had been sued; binding the unsued six would violate natural justice and property rights. Judgment was accordingly entered only against the two defendants: the plaintiff was declared entitled to registration of their combined 3.0 acres, their rights extinguished, with a 30-day execution order, default provision for the Deputy Registrar, and costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved adverse possession of the suit land

Holding

Yes, as against the two defendants; occupation since 1982/1984 far exceeded the 12-year limitation period

Reasoning

The plaintiff's evidence of purchase agreements dated 19 December 1982 and 18 April 1984, and of occupation since 1982, was uncontroverted as the defendants failed to attend the defence hearing. Their own replying affidavit conceded occupation. No suit was brought to interrupt possession from 1982 to 2013, and the plaintiff never admitted the defendants' title. The unrebuted evidence showed Mumelo migrated to Kitale after selling the land.

p. 4
02

Whether the Green Card suggesting first registration of Mumelo on 22 May 2013 defeats the claim

Holding

No; the encumbrances section shows the land was charged to the Agricultural Finance Corporation as far back as 1975, so first registration was not in 2013

Reasoning

A casual reading of the Green Card suggested first registration in 2013, which would defeat the claim since the 12-year period would not have run by the date of suit. However, the encumbrances section showed a charge to the AFC in 1975, and both sale agreements identified the land by its parcel number, confirming the land was registered well before 2013. The claim was therefore not defeated.

p. 5
03

Whether adverse possession orders could issue against all eight co-proprietors

Holding

No; only the two defendants sued were bound, so the plaintiff got only their combined 3.0 acres

Reasoning

The suit land was registered in the names of eight proprietors, but only two were sued, not as administrators of the estate of Mumelo but in their own capacity as registered co-proprietors. Binding the other six co-owners without joinder would violate natural justice and their property rights. It was fatal to the plaintiff's claim to the whole land that he failed to sue all proprietors.

p. 5

Legal principles established

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  • A claimant in adverse possession must prove exclusive, open, uninterrupted possession as of right for 12 years
  • Adverse possession orders can only issue against the registered proprietors actually sued or the administrators of their estates
  • Time for adverse possession runs from the date possession is taken; where possession is taken under successive sale agreements, time runs separately for each portion
  • A court may invoke Article 159(2)(d) and its inherent powers to admit a document in Kiswahili notwithstanding Section 23(1) of the Environment and Land Court Act as amended in 2012

Court orders

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  1. 1.The plaintiff is entitled to be registered as proprietor of 3.0 acres out of land parcel NO EAST BUKUSU/NORTH KANDUYI/748 by way of adverse possession
  2. 2.The rights of the defendants in 3.0 acres out of the suit land stand extinguished by effluxion of the law
  3. 3.The defendants shall execute all relevant documents to facilitate registration of 3.0 acres of the suit land in the plaintiff's names within 30 days
  4. 4.In default, the Deputy Registrar of the Court may execute such documents on behalf of the defendants
  5. 5.The defendants shall meet the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSections 6, 13, 17, 38(1)
  • Land Registration Act 2012Section 28(h)
  • Land Act 2012Section 7
  • Environment and Land Court ActSection 23 (as amended 2012)
  • Law of Succession ActSection 45
  • Constitution of Kenya 2010Articles 7(1) and (2), 159(2)(d)

Cases cited (6)

  • KASUVE v MWAANI INVESTMENTS LTD & OTHERS
    2004 1 KLR 184
  • BENJAMIN KAMAU & OTHERS v GLADYS NJERI
    C.A Civil Appeal No 2136 of 1996
  • KIMANI RUCHINE & ANOTHER v SWIFT RUTHERFORD & CO LTD
    1980 KLR 10
  • MTANA LEWA v KAHINDI NGALA MWAGANDI
    C.A Civil Appeal No 56 of 2014 [2015 eKLR]
  • GITHU v NDEETE
    1984 KLR 776
  • BIBIANA NEKESA WANDALA v DALLAS WAFULA WAMALWA & OTHERS
    Bungoma ELC Case No 3 of 2019
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act; adverse possession under Sections 6, 13 and 17 of the Limitation of Actions Act, Sections 28(h) Land Registration Act 2012 and Section 7 Land Act 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simon Khaemba Mwanja – Deceased (substituted with his son Kennedy Wakoto Khaemba) v Jamin Wasike Khaemba & another [2020] KEELC 2391 (KLR)", Case Analysis (2020). Bungoma ELC Originating Summons (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2391/eng@2020-05-27

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