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ELCDismissedBungoma ELC (Originating Summons, amended, dated 19th May 2012)· [2020] KEELC 2435 (KLR)

Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2020] KEELC 2435 (KLR)

Environment and Land Court
27 May 2020
4,868 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, by amended Originating Summons dated 19th May 2012, claimed the land parcel NDIVISI/NDIVISI/1640 by adverse possession, seeking registration as proprietor in place of the 1st defendant, declarations against the 2nd defendant (purchaser), and eviction of the 2nd defendant. The case rested on a sale agreement of 22nd May 1996 by which the 1st defendant sold the plaintiff 2 acres out of NDIVISI/NDIVISI/1552; when the original portion was resold, the 1st defendant allegedly showed the plaintiff the suit land, which the plaintiff occupied from 1996 until 2011 when the 2nd defendant entered after purchasing from the 1st defendant on 14th March 2011. The 1st defendant countered that the plaintiff never paid Kshs. 78,900/= for trees, bananas and developments, leased the land to third parties, and never dispossessed him, relying on a demand letter of 12th February 2002. The court, guided by the Limitation of Actions Act and Court of Appeal authorities including Kasuve v Mwaani Investments, Sisto Wambugu v Kamau Njuguna and Mtana Lewa v Kahindi Ngala Mwagandi, held that adverse possession requires exclusive, open, peaceful possession and dispossession or discontinuance by the owner. It found the plaintiff's possession neither exclusive nor peaceful - he leased the land out, never paid for the crops, and never dispossessed the 1st defendant, who was able to re-enter and sell to the 2nd defendant. The plaintiff's denial of the 2002 demand letter was rejected as he could not approbate and reprobate, his own caution showing the same postal address. The court also held that a claim in adverse possession lies only against the registered proprietor; the 1st defendant's title, protected by Section 24 of the Land Registration Act, entitled him to transfer to the 2nd defendant, whose entry was lawful. The suit was dismissed with costs on 27th May 2020, the judgment being delivered electronically due to COVID-19 restrictions.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession

Holding

No - his occupation was neither exclusive nor peaceful and he never dispossessed the registered owner

Reasoning

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.

p. 5
02

Whether the 2nd defendant's entry was lawful and whether he should be evicted

Holding

His entry was lawful; no eviction could issue

Reasoning

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.

p. 6
03

Credibility of the plaintiff's denial of the 12th February 2002 letter

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The plaintiff's suit against both defendants is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSections 7, 13 and 17
  • Land Registration Act 2012Section 28(h)
  • Land Registration Act 2012Section 24
  • Land Act 2012Section 7
  • Registered Land Act (repealed)Section 27

Cases cited (8)

  • KASUVE .V. MWAANI INVESTIMENTS LTD & OTHERS
    2004 1 K.L.R
  • BENJAMIN KAMAU & OTHERS .V. GLADYS NJERI
    C.A CIVIL APPEAL NO 2136 OF 1996
  • KIMANI RUCHINE .V. SWIFT RUTHERFORD & CO LTD
    1980 KLR 10
  • ROBERT SHUME & OTHERS .V. SAMSON KAZUNGU KALAMA
    2015 eKLR
  • GRACE WAIRIMU SORORA .V. CHAKA LTD & OTHERS
    2017 eKLR
  • MTANA LEWA .V. KAHINDI NGALA MWAGANDI
    C.A CIVIL APPEAL NO 56 OF 2014 MALINDI [2015 eKLR]
  • SISTO WAMBUGU .V. KAMAU NJUGUNA
    C.A CIVIL APPEAL NO 10 OF 1982 [1983 eKLR]
  • LITTEDALE .V. LIVERPOOL COLLEGE
    1900 1 CH 19
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.