Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2020] KEELC 2435 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired title by adverse possession
No - his occupation was neither exclusive nor peaceful and he never dispossessed the registered owner
The court applied the test in Kasuve v Mwaani Investments and Sisto Wambugu v Kamau Njuguna requiring exclusive, open, peaceful, notorious possession and dispossession or discontinuance by the owner for 12 years. The plaintiff leased the land to third parties, never paid for trees and bananas, and the 1st defendant remained able to re-enter, complain by letter and give possession to the 2nd defendant. There was no complete ouster.
Whether the 2nd defendant's entry was lawful and whether he should be evicted
His entry was lawful; no eviction could issue
The 1st defendant remained the registered proprietor and, under Section 24 of the Land Registration Act (formerly Section 27 of the repealed Registered Land Act), enjoyed the right to transfer the land to third parties. No fraud, illegality or unprocedural conduct was suggested. A claim in adverse possession lies only against the registered proprietor or his successor, and the plaintiff's adverse possession claim having failed, the claims against the 2nd defendant rested on no foundation.
Credibility of the plaintiff's denial of the 12th February 2002 letter
The plaintiff's own caution entry showed P.O. Box 80 Kimilili as his address, so his claim that the letter was a forgery using an address never his was rejected
The certificate of official search produced by the plaintiff recorded the caution in his favour at BOX 80 KIMILILI, the same address on the impugned letter. Further, Muchelule J in an earlier interlocutory ruling had noted the plaintiff did not dispute receiving the letter. The court held he could not approbate and reprobate. The letter demonstrated his possession was not peaceful, as it showed disputes over payment and leasing to third parties.
Legal principles established
#- A claim for adverse possession can only be made against the registered proprietor of the land in dispute or his successor
- The proper test of adverse possession is whether the title holder has been dispossessed or has discontinued possession for the statutory period, not merely whether the claimant has been in possession
- A party cannot approbate and reprobate - take contradictory positions on the same fact
Court orders
#- 1.The plaintiff's suit against both defendants is dismissed with costs
- Jurisdiction invoked
- Original jurisdiction under Section 38(1) of the Limitation of Actions Act (claim for order of registration as proprietor by adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2020] KEELC 2435 (KLR)", Case Analysis (2020). Bungoma ELC (Originating Summons, amended, dated 19th May 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2435/eng@2020-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.