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ELCAllowedNot stated in the judgment (Bungoma Environment and Land Court Originating Summons, amended 24th May 2019)· [2020] KEELC 2450 (KLR)

Bibiana Nekesa Wandala (suing on her own behalf and on the behalf of the Estate of Wandela Wangula Namangala – Deceased) v Daclas Wafula Wamalwa & 3 others [2020] KEELC 2450 (KLR)

Environment and Land Court
27 May 2020
BOBoaz N. Olao
3,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, Bibiana Wekesa Wandala, brought an amended Originating Summons seeking a declaration that she had acquired 5 acres of land parcels West Bukusu/South Myanga/2442 to 2445 by adverse possession, an order extinguishing the defendants' titles, and registration as proprietor. Her case was that she and her late husband purchased 4 acres in 1972 and 1 acre in 1978 from Benedicto Nangaki, the defendants' deceased father, paid the price in full, and occupied the land continuously since 1972, though transfer was never effected before Benedicto's death in 1988. The defendants acknowledged occupation but contended only 2 acres were sold, that a balance of Kshs 80,000 remained unpaid, and that the plaintiff signed for 2 acres in the succession proceedings. The court held that the purchase price was fully paid, inferring this from the undisturbed occupation since 1972 and the absence of any demand for a balance, noting the defendants were strangers to the sale agreements. The court found the affidavit in the succession cause defective as it was neither dated nor commissioned, and that the plaintiff's occupation of 5 acres was established on the evidence. Following the line of authority that time for adverse possession runs from possession under a sale agreement, the court held that the plaintiff's open, peaceful and uninterrupted occupation since 1972 exceeded the limitation period, and that the sub-division and registration of the land in the defendants' names in 2018 did not defeat her claim. Judgment was entered for the plaintiff: the defendants' titles to 5 acres were extinguished, she was declared entitled to registration, the defendants were ordered to execute transfer documents within 30 days, with the Deputy Registrar empowered to execute in default, and the defendants were ordered to pay the plaintiff's costs.

Key legal issues

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01

Acreage occupied by the plaintiff

Holding

The plaintiff and her family occupy 5 acres of the suit land, not 2 acres as alleged by the 1st defendant.

Reasoning

The 1st defendant admitted he was not party to the sale agreements, did not know the size of the land occupied, and had never demanded any balance of purchase price or attempted eviction. The affidavit relied on in the succession proceedings was undated and uncommissioned, hence defective and inadmissible. The plaintiff's unchallenged evidence established occupation of 5 acres since 1972 and 1978.

p. 4
02

Payment of the purchase price

Holding

The court inferred that the plaintiff's deceased husband paid the purchase price in full.

Reasoning

The family was allowed to remain in occupation from 1972 without dispute; no evidence of any demand for the balance was produced; and the defendants, being strangers to the agreements between their father and the plaintiff's husband, could not vary their terms.

p. 3
03

Adverse possession by a purchaser in possession

Holding

The court followed the view that time for adverse possession may run from the date the purchaser is put in possession, and that the plaintiff's long, open and uninterrupted occupation extinguished the defendants' title.

Reasoning

Adopting Mbugua Njuguna v Elijah Mburu Wanyoike and Peter Mbiri Michuki v Samuel Mugo Michuki, and applying Mwangi v Mwangi on equitable rights of persons in possession, the court held that occupation since 1972/1978 exceeded the 12-year limitation period and that the change of registration in 2018 did not defeat the claim.

p. 3
04

Untranslated sale agreements in Kibukusu language

Holding

The untranslated sale agreements could not aid the plaintiff because the language of the Court is English.

Reasoning

Section 23(1) of the Environment and Land Court Act as amended requires the language of the Court to be English. The court lamented the removal of Kiswahili but declined to admit the agreements, though this did not defeat the claim since occupation was largely undisputed.

p. 2

Legal principles established

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  • A claim for adverse possession is predicated on what the claimant actually occupies on the ground, which is a matter of fact to be observed on the land.
  • A mere change of ownership of land claimed by a person in possession does not defeat that person's claim in adverse possession.
  • Where occupation of land is with the consent of the registered owner, a claim for adverse possession cannot be sustained.
  • Time for adverse possession may run from the date the purchaser under a sale agreement takes possession of the land.

Court orders

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  1. 1.The defendants' titles to 5 acres out of the land parcels NO WEST BUKUSU/SOUTH MYANGA/2442, 2443, 2444 and 2445 have been extinguished
  2. 2.The plaintiff is entitled to be registered as the proprietor of 5 acres out of the land parcels NO WEST BUKUSU/SOUTH MYANGA/2442, 2443, 2444 and 2445 having acquired the same by virtue of adverse possession
  3. 3.The defendants to execute all the necessary documents to facilitate the transfer and registration of 5 acres out of the land parcels in the names of the plaintiff within 30 days from the date of the Judgment
  4. 4.In default, the Deputy Registrar of the Court shall be at liberty to execute the documents on behalf of the defendants
  5. 5.The defendants shall meet the plaintiff's costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Section 23(1) of the Environment and Land Court Act (as amended), in a claim under Section 38(1) of the Limitation of Actions Act

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, "Bibiana Nekesa Wandala (suing on her own behalf and on the behalf of the Estate of Wandela Wangula Namangala – Deceased) v Daclas Wafula Wamalwa & 3 others [2020] KEELC 2450 (KLR)", Case Analysis (2020). Not stated in the judgment (Bungoma Environment and Land Court Originating Summons, amended 24th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2450/eng@2020-05-27

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