Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC NO. 46 OF 2018 (OS)· [2020] KEELC 2956 (KLR)

Kano Kajulu Farmers Cooperative Society Ltd v County Land Registrar, Kisumu & Another [2020] KEELC 2956 (KLR)

Environment and Land Court
27 April 2020
1,585 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
Kano Kajulu Farmers Cooperative Society Ltd brought an Originating Summons against the County Land Registrar, Kisumu and Mary Akey Ogendo, seeking a declaration that it had acquired land parcel KISUMU/KOCHIENG'/2836 by adverse possession. The Society relied on a sale agreement of 18th April 1977 by which Onyango Oyoo (deceased) sold the parcel to it; it paid the full price, took possession, fenced the parcel and constructed a store and office block, occupying undisturbed for over 41 years. It alleged the parcel was irregularly and fraudulently transferred to the 2nd Defendant in February 2013 without letters of administration. Despite proper service, the Defendants filed no response and tendered no evidence; the suit proceeded by written submissions. Applying Samuel Miki Waweru v Jane Njeri Richu, the court held that because no Land Control Board consent was obtained within six months, the transaction became void in October 1977 and the Plaintiff's continued possession became adverse from that date. Following Samwel Nyakenogo v Samwel Orucho Onyaru, it held the deceased's title was extinguished by the end of 1989, so the 2013 transfer did not interrupt adverse possession and the 2nd Defendant held the title in trust for the Plaintiff. The court allowed the suit, cancelled the 2nd Defendant's title deed, ordered registration of the parcel in the Plaintiff's name, and awarded the Plaintiff costs.

Key legal issues

#
01

Whether a purchaser in a void controlled transaction can claim title by adverse possession

Holding

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.

Reasoning

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.

p. 2
02

Whether the deceased's title had been extinguished before the subsequent transfer to the 2nd Defendant

Holding

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.

Reasoning

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.

p. 2

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. 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. 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. 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. 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. 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. 6.The Respondents to pay the costs of the summons to the Plaintiff

Authorities

#

Legislation

  • Land Control ActSection 6(1)
  • Land Control ActSection 8(1)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 38
  • Constitution of KenyaArticle 40

Cases cited (3)

  • Edward Wanjala v Fredrick Philip Khayo
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001 [2007] eKLR
  • Samwel Nyakenogo v Samwel Orucho Onyaru
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.