Colleta Nerima Ojwang & 2 Others v Nobert Makwara Opiyo [2020] KEELC 2809 (KLR)
The bottom line
#A Kenyan family who openly occupied land for over 12 years won ownership, and the registered owner's eviction claim was dismissed.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved adverse possession of the suit parcel for over 12 years
Yes; occupation since 1973 (or at latest from 1992) was open, peaceful and in excess of 12 years, entitling them to the entire portion they occupy
The court found it undisputed that the plaintiffs occupy the portion claimed, that the occupation was open and peaceful, and that whether counted from 1973 or 1992 it exceeded 12 years. The defendant's assertion of temporary occupation was uncorroborated, with no start or end date given. The defendant, succeeding his father, took subject to rights already acquired by the adverse possessors.
Whether a constructive trust arose over the portion occupied by the plaintiffs
Yes; the defendant's father held the title in trust for the portion that Vincent and his family occupied, and the defendant took subject to that trust
Evidence from PW2 and PW3 corroborated that the two brothers held equal defined portions, with the original owner registered in trust. The defendant admitted the plaintiffs lived there before his father died and had no other land, yet could not explain offering them 2 acres while pleading they were entitled to nothing. This established a constructive trust over the occupied portion.
Whether the filing of Busia CMCC No. 198 of 2014 interrupted the running of time for adverse possession
No; the two suits were consolidated and became one, so the question of the earlier suit stopping time does not arise
The defendant argued the Originating Summons was sub judice and an afterthought given the pending eviction suit. The court noted the CMCC suit was transferred to the ELC and consolidated with the Originating Summons by orders of 25/2/2015 and 9/11/2015. Once consolidated, the suits became one, so the earlier suit could not operate to interrupt time.
Legal principles established
#- To succeed in adverse possession a claimant must prove possession as of right, nec vi, nec clam, nec precario, continuously for over 12 years, with the registered owner having actual or constructive knowledge of the occupation
- A sub-division of land by a registered owner that does not constitute one of the statutory steps to interrupt adverse possession does not stop time from running
- Where a registered proprietor holds land in trust for a family member in occupation, a constructive trust arises and even a successor to title takes subject to the rights of the adverse possessor
Court orders
#- 1.A declaration that the applicants have become the registered owners of a portion of L.R No. Bukhayo/Kisoko/2387 by virtue of adverse possession
- 2.Judgment entered for the plaintiffs as prayed in the amended Originating Summons dated 16/5/2018
- 3.The defendant's claim for permanent injunction and eviction of the plaintiffs from parcel No. Bukhayo/Kisoko/2387 dismissed
- 4.Costs of the consolidated suit awarded to the plaintiffs in the Originating Summons
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (claim for adverse possession over land); consolidated suit transferred from the Chief Magistrate's Court by order of 25/2/2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Colleta Nerima Ojwang & 2 Others v Nobert Makwara Opiyo [2020] KEELC 2809 (KLR)", Case Analysis (2020). Civil Case No. 144 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2809/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.