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ELCPartially AllowedELC Case No. 163 of 2017 (OS)· [2020] KEELC 2899 (KLR)

Francis Lutawa Kimatuni v David Munanga Wetende [2020] KEELC 2899 (KLR)

Environment and Land Court
6 May 2020
1,607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court ruled that nearly 50 years of open occupation let a man claim ownership of one acre despite the seller's son holding the title.

What this practically means

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Executive summary

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This was an originating summons before the Environment and Land Court at Kakamega in which Francis Lutawa Kimatuni sought a declaration that he had acquired one acre of land parcel Kakamega/Lukume/59 by adverse possession, having allegedly bought it from the respondent's father, Simeon Wetende, on 6 October 1971, taken possession and cultivated it. The applicant further alleged that after the seller's death the respondent agreed to honour the sale upon payment of Kshs.1,500, that the area chief confirmed the sale, and that KETRACO compensated him for the land. The respondent denied the sale, the payment and the occupation, asserting he inherited the entire parcel from his father and that any agreement lacked land control board consent. The court applied sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title, and the adverse possession principles in Wambugu v Njuguna, Gerald Muriithi v Wamugunda Muriuki, Elijah Makeri Nyangw'ra and Kimani Ruchire v Swift Rutherfords. Accepting the applicant's evidence, the court found exclusive, continuous and uninterrupted possession exceeding twelve years and held that the applicant had proved his case on a balance of probabilities. The court declared that the respondent holds the portion in trust for the applicant, declared the applicant the owner of the one acre by adverse possession, ordered the respondent to transfer it within ninety days with the Deputy Registrar empowered to sign in default, and made no orders as to costs. The prayer for cancellation of the respondent's title deed was not expressly granted, and the judgment contains measurement inconsistencies between the one-acre claim and the 1.5 Ha trust declaration.

Key legal issues

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01

Whether the applicant acquired title by adverse possession

Holding

Yes; the applicant proved exclusive, continuous and uninterrupted possession for over 12 years on a balance of probabilities

Reasoning

The court applied the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords: the claimant must prove possession nec vi, nec clam, nec precario, continuous and not broken, with the owner dispossessed or having discontinued possession for the statutory period. Where possession flows from a purchase agreement, time runs from payment of the last installment. The court believed the plaintiff's evidence of the 1971 sale, possession, the defendant's commitment to honour the agreement after payment of Kshs.1,500, the chief's letter and KETRACO compensation.

p. 2
02

Whether the registered title of the defendant is indefeasible

Holding

The title is prima facie indefeasible under sections 24 and 26 of the Land Registration Act but may be challenged where acquired illegally, unprocedurally or through a corrupt scheme, or where adverse possession is established

Reasoning

The court invoked section 24(a) vesting absolute ownership upon registration and section 26(1) protecting certificates of title, subject to challenge on fraud or misrepresentation or where the title was acquired illegally, unprocedurally or through a corrupt scheme. It followed Elijah Makeri Nyangw'ra on impugning titles. The defendant's registered title nonetheless yielded to the proved adverse possession of the plaintiff.

p. 2
03

Whether the respondent holds the land in trust for the applicant

Holding

The court declared that the respondent holds the portion in trust for the applicant

Reasoning

As part of the final orders the court declared a trust over the 1.5 Ha portion in favour of the plaintiff, alongside the adverse possession declaration, effectively giving effect to the claim that the respondent, who inherited from his father while the plaintiff was in possession, holds the land for the applicant.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • A claimant pleading a sale agreement in the alternative with adverse possession is deemed adverse after payment of the last installment of the purchase price, and succeeds upon 12 years' occupation thereafter

Court orders

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  1. 1.Declaration that the defendant/respondent holds in trust for the plaintiff/applicant portion measuring 1.5 Ha of land parcel No. Kakamega/Lukume/59
  2. 2.The plaintiff/applicant declared the owner of the portion measuring 1 acre of land parcel No. Kakamega/Lukume/59 which he occupies, by virtue of adverse possession
  3. 3.The defendant/respondent to transfer the said suit land to the plaintiff/applicant within 90 days from the date of judgment, and in default the Deputy Registrar to sign the transfer documents
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actprovisions on adverse possession

Cases cited (5)

  • Elijah Makeri Nyangw’ra –vs– Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (origination summons for 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, "Francis Lutawa Kimatuni v David Munanga Wetende [2020] KEELC 2899 (KLR)", Case Analysis (2020). ELC Case No. 163 of 2017 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2899/eng@2020-05-06

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