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ELCAllowedOriginating Summons dated 19th November 2018, filed 20th November 2018 (Bungoma)· [2020] KEELC 2431 (KLR)

Wanambuko Nyongesa Mukethe v Patrick Kituyi Nambale & 9 others [2020] KEELC 2431 (KLR)

Environment and Land Court of Kenya (High Court, Bungoma)
27 May 2020
3,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Bungoma court awarded a 94-year-old man 7 acres of land he had occupied peacefully since 1979, confirming his title by adverse possession.

What this practically means

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Executive summary

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The plaintiff, a 94-year-old man, filed an Originating Summons on 20th November 2018 against ten defendants, the beneficiaries and administrators of the Estate of Elijah Nambale Kakai (deceased), seeking registration as proprietor of 7 acres forming part of land parcel NO WEST BUKUSU/NORTH MYANGA/1516 by adverse possession. He deponed that since 1979 he occupied the 7 acres peacefully, openly and exclusively, having purchased it from one Wachwenge Manyuru Kiliboti from whom the deceased also bought land, but the deceased included the plaintiff's portion in his own title. The 1st defendant, opposing on behalf of all defendants, denied continuous peaceful possession, labelled the plaintiff a trespasser, and cited a 1994 trespass suit and a succession cause in which the estate was distributed. Boaz N. Olao J applied Kasuve v Mwaani Investments, Benjamin Kamau v Gladys Njeri, Maweu v Liu Ranching, Githu v Ndeete and Mtana Lewa v Kahindi Ngala Mwagandi, holding that the plaintiff's occupation since 1979 exceeded the statutory 12 years and was effectively conceded by the 1st defendant. The 1994 suit came too late to interrupt possession, the 1991 boundary dispute was a resolved one-off incident over one acre, and the subsequent registration of the defendants in 2012 did not interrupt the claim. Judgment was entered for the plaintiff: a declaration of adverse possession over the 7 acres, transfer by the defendants within 30 days, default execution by the Deputy Registrar, and costs against the defendants.

Key legal issues

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01

Whether the plaintiff proved 12 years of peaceful, open, exclusive and uninterrupted possession of 7 acres of the suit land

Holding

Yes; occupation since 1979 was peaceful, exclusive, open and uninterrupted and was effectively conceded by the 1st defendant, who admitted the plaintiff lives on the 7 acres and none of the defendants utilise it

Reasoning

The plaintiff testified he occupied 7 acres since 1979, developing it with permanent and semi-permanent houses. His two witnesses corroborated this. The 1st defendant conceded in his affidavit and in cross-examination that the plaintiff occupies the land and the defendants never used it. Conceding trespass confirmed possession. Occupation exceeded the statutory 12 years.

p. 5
02

Whether the alleged 1994 trespass suit and the 1991 boundary dispute interrupted the plaintiff's possession

Holding

No; the 1994 suit came too late, after the claim had crystallised, and the 1991 boundary dispute was a one-off incident over 1 acre amicably resolved

Reasoning

The 1994 magistrate's court suit, if filed, came 15 years after occupation began, beyond the 12-year statutory period, so it could not legally interrupt possession; its pleadings were not availed to prove it. The 1991 boundary dispute involved only 1 acre and was resolved amicably by elders, after which the plaintiff continued in peaceful occupation.

p. 4
03

Whether a purchaser who entered under a sale can found a claim in adverse possession

Holding

Yes, where the sale aborts but the purchaser remains in possession for the statutory period

Reasoning

The plaintiff did not seek to enforce a sale agreement with Wachwenge Manyuru Kiliboti; such a claim would be statute barred. Both he and the deceased purchased from the same seller, but the deceased registered the plaintiff's 7 acres in his own title. The court held a purchaser remaining in occupation after an aborted sale can claim adverse possession after the statutory period.

p. 5
04

Whether registration of the defendants as proprietors in 2012 extinguished or interrupted the claim

Holding

No; a change of ownership of land occupied by another under adverse possession does not interrupt the claim

Reasoning

The Certificate of Search showed the defendants were registered on 26th September 2012, previously registered in the deceased's name since 25th October 1988. Applying Githu v Ndeete, the court held transfer of title to the defendants did not interrupt the plaintiff's adverse possession, and their title to the 7 acres is extinguished; they hold it as mere trustees.

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
  • Expiry of 12 years of adverse possession extinguishes the proprietor's title
  • An adverse possessor may claim a portion of land if well identified
  • Change of ownership of land occupied by an adverse possessor does not interrupt the claim
  • A purchaser who remains in possession after an aborted sale may claim by adverse possession

Court orders

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  1. 1.An order that the plaintiff is entitled to 7 acres out of land parcel NO WEST BUKUSU/NORTH MYANGA/1516 by way of adverse possession
  2. 2.The defendants shall within 30 days of the Judgment execute all the relevant documents to facilitate the transfer of the 7 acres to the plaintiff
  3. 3.In default, the Deputy Registrar of the Court shall execute all the relevant documents on behalf of the defendants to facilitate the transfer
  4. 4.The defendants shall meet the plaintiff's costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 38
  • Land Registration Act 2012Section 28(h)
  • Land Act 2012Section 7
  • Evidence ActSection 109
  • Constitution of Kenya 2010promulgation of the new land laws

Cases cited (7)

  • KASUVE .V. MWAANI INVESTMENTS LITD & 4 OTHERS
    2004 1 KLR 184
  • BENJAMIN KAMAU & OTHERS .V. GLADYS NJERI
    C.A CIVIL APPEAL NO 2136 OF 1996
  • MAWEU .V. LIU RANCHING & FARMING CO – OPERATIVE SOCIETY LTD
    1985 KLR 430
  • GITHU .V. NDEETE
    1984 KLR 776
  • MTANA LEWA .V. KAHINDI NGALA MWAGANDI
    C.A CIVIL APPEAL NO 56 OF 2014 [2015 eKLR]
  • PUBLIC TRUSTEE & BEATRICE MUTHONI .V. KAMAU WANDURU
    C.A CIVIL APPEAL NO 73 OF 1982
  • GATIMU KUNGURU .V. MUYA GATHANGI
    1976 KLR 53
Jurisdiction invoked
Section 38 of the Limitation of Actions Act - application to the High Court for an order that an adverse possessor be registered as proprietor

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Wanambuko Nyongesa Mukethe v Patrick Kituyi Nambale & 9 others [2020] KEELC 2431 (KLR)", Case Analysis (2020). Originating Summons dated 19th November 2018, filed 20th November 2018 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2431/eng@2020-05-27

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