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ELCPartially AllowedCase No. 30 of 2019 (O.S.)· [2020] KEELC 3001 (KLR)

Issa Isaya Wesechere v Fredrick Iseme Esenyi & another [2020] KEELC 3001 (KLR)

Environment and Land Court
29 April 2020
AOA. Omollo
992 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court transferred land to a buyer who had openly occupied it for over 12 years, even though the sellers never defended the case.

What this practically means

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Executive summary

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The applicant took out an Originating Summons against the respondents, administrators of the estate of Bushuru Oroni (deceased), seeking a declaration that the respondents' right over a 0.8ha portion of L.R. No. Bukhayo/Buyofu/441 was extinguished by adverse possession, a perpetual bar against the respondents, registration of the portion in his name, and execution of transfer documents. The applicant deposed that he purchased the 2-acre portion from Eliud Wetsuli Barasa, a beneficiary, on 17 March 2006 for Kshs.85,000, took vacant possession, planted sugarcane and built four semi-permanent houses. The respondents were served on 15 May 2019 but neither entered appearance nor filed a defence. At the hearing on 19 November 2019 the applicant adopted his affidavit, witness statement and documents, including a certified green card showing the respondents' registration as personal representatives in 2007 and his caution of 21 March 2012. Counsel cited Samuel Kihamba v Mary Mbaisi and Kilimo Shutu v Godrey Karume on the elements of adverse possession. The court, though the suit was undefended, examined whether the claim was proved. It found the applicant had been in open, exclusive and uninterrupted possession in excess of 12 years, uncontradicted, and that the administrators' 2007 registration did not extinguish his interest since they never sought to recover the portion. Judgment was entered in terms of prayers 1-4 of the Originating Summons, with no costs awarded because the suit was undefended.

Key legal issues

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01

Proof of adverse possession on an undefended claim

Holding

The plaintiff proved his case on a balance of probabilities; possession since 17 March 2006 exceeded 12 years and the respondents' registration as personal representatives in 2007 did not extinguish his interest

Reasoning

Although undefended, the court was obliged to test the evidence. The plaintiff was put in possession immediately on execution of the sale agreement, demarcated the portion, planted sugarcane, built four semi-permanent houses, and filed suit in the 13th year. The administrators took no steps to recover the portion, so possession was open, exclusive and uninterrupted.

p. 2
02

Effect of registration of administrators on a purchaser in possession

Holding

Registration of the defendants as personal representatives of the deceased in 2007 did not extinguish the plaintiff's possessory interest

Reasoning

The plaintiff derived possession from Eliud Wetsuli Barasa, a beneficiary with a stake in the land. The administrators, though registered in 2007, never took steps to recover the portion occupied by the plaintiff, leaving his possession uninterrupted for over 12 years.

p. 2

Legal principles established

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  • A claimant in adverse possession must prove exclusive, open, uninterrupted possession for 12 years

Court orders

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  1. 1.Declaration that the respondents' right over the 0.8ha portion of L.R. No. Bukhayo/Buyofu/441 was extinguished by adverse possession after 12 years
  2. 2.Perpetual injunction barring the respondents from taking or using the 0.8ha portion
  3. 3.Order that the 0.8ha portion be registered in the applicant's name as absolute proprietor
  4. 4.Order that the respondents execute all documents to facilitate subdivision and transfer, with the deputy registrar to execute in default
  5. 5.No costs awarded to the plaintiff

Authorities

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Legislation

  • Limitation of Actions Actnot specified
  • Land Registration Actnot specified

Cases cited (2)

  • Samuel Kihamba Vs Mary Mbaisi
    (2015) eKLR
  • Kilimo Shutu and 6 Others Vs Godrey Karume
    (2017) eKLR
Jurisdiction invoked
Originating summons under the Limitation of Actions Act and the Land Registration Act in the Environment and Land Court

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, "Issa Isaya Wesechere v Fredrick Iseme Esenyi & another [2020] KEELC 3001 (KLR)", Case Analysis (2020). Case No. 30 of 2019 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3001/eng@2020-04-29

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