Kano Kajulu Farmers Cooperative Society Ltd v County Land Registrar, Kisumu & Another [2020] KEELC 2956 (KLR)
The bottom line
#A Kenyan court cancelled a landowner's title because a cooperative had openly occupied the land for over 40 years.
What this practically means
#Executive summary
#Key legal issues
#Whether a purchaser in a void controlled transaction can claim title by adverse possession
Yes. Consent of the Land Control Board was not obtained within six months, rendering the 1977 sale void under Sections 6(1) and 8(1) of the Land Control Act; the Plaintiff's possession became adverse from October 1977.
Relying on Samuel Miki Waweru v Jane Njeri Richu, the court held that when a controlled transaction becomes void for want of consent, the vendor's permission is terminated by operation of law and continued possession becomes adverse. The Plaintiff proved it took possession in 1977 under an unchallenged sale agreement, paid the full purchase price, and occupied exclusively and undisturbed for over 41 years.
Whether the deceased's title had been extinguished before the subsequent transfer to the 2nd Defendant
Yes. The deceased's title was extinguished by the end of 1989, 12 years after adverse possession began, so the 2013 transfer conferred no better title and the 2nd Defendant holds in trust for the Plaintiff.
Following Samwel Nyakenogo v Samwel Orucho Onyaru, the court held that once the limitation period runs against the registered proprietor, his title is extinguished by operation of law. Any later transfer cannot revive that title or interrupt the adverse possession; the transferee simply steps into the position of the former owner and holds the title in trust for the adverse possessor.
Legal principles established
#- Where a purchaser is permitted into possession of land in a controlled transaction pending completion and the transaction becomes void for want of Land Control Board consent, the vendor's permission is terminated by operation of law and continued possession becomes adverse from that time.
- A person entitled by adverse possession to registered land may apply to the High Court for an order that he be registered as proprietor in place of the person registered.
- A subsequent transfer of land to another person does not interrupt adverse possession already running; the transferee takes subject to the adverse possessor's claim and holds the title in trust for him.
Court orders
#- 1.The Plaintiff is entitled to the whole land parcel no. KISUMU/KOCHIENG'/2836 measuring or estimated to measure 0.30 Ha or thereabouts by reason of adverse possession exceeding 12 years
- 2.The 2nd Defendant's proprietary interest in the suit parcel has been extinguished by virtue of the Plaintiff's adverse possession and she holds the title in trust for the Plaintiff
- 3.The transfer of the suit parcel from Onyango Oyoo (deceased) to the 2nd Defendant was irregular and fraudulent, and therefore null and void
- 4.The 2nd Defendant's title to and proprietary interest in the whole of the suit parcel has been extinguished by operation of the law by virtue of adverse possession and she holds the title in trust for the Plaintiff
- 5.The title deed issued in the name of the 2nd Defendant is cancelled and the whole parcel transferred and registered in the name of the Plaintiff; the Deputy Registrar to sign all relevant documents
- 6.The Respondents to pay the costs of the summons to the Plaintiff
- Jurisdiction invoked
- Sections 7, 13 and 38 of the Limitation of Actions Act; Sections 6(1) and 8(1) of the Land Control Act; Article 40 of the Constitution (invoked in the pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kano Kajulu Farmers Cooperative Society Ltd v County Land Registrar, Kisumu & Another [2020] KEELC 2956 (KLR)", Case Analysis (2020). ELC NO. 46 OF 2018 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2956/eng@2020-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.