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ELCPartially AllowedCivil Case No. 153 of 2014 (O.S)· [2020] KEELC 3022 (KLR)

Abraham Jeremia Irukan v Rasomo Osilingi Omunyongor [2020] KEELC 3022 (KLR)

Environment and Land Court
29 April 2020
3,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Busia court declared a family owners of 5 acres after 33 years of open occupation, and dismissed the landowner's late eviction suit as time-barred.

What this practically means

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Executive summary

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The plaintiffs, Beatrice Okumu Omonya (widow of the late Richard Eric Etori) and her son Abraham Jeremia Irukan, brought an Originating Summons seeking to be declared owners of approximately 5 acres out of L.R No. North Teso/Angurai/474 by adverse possession. They claimed the late Etori purchased the portion from the respondent in 1980, took possession in 1981, demarcated it with a sisal boundary, and that the 2nd plaintiff later established his homestead there around 2000. The defendant denied the sale and counterclaimed for eviction in Bungoma ELC Case No. 159 of 2014, alleging the plaintiffs had agreed in writing on 13/2/2014 to vacate as trespassers. The two suits were consolidated and heard together. The court framed three questions: when the plaintiffs entered the land, whether their occupation extinguished the defendant's rights, and costs. Finding the defendant's evidence internally contradictory, and accepting the credible testimony of PW2 (a witness to the sale) and PW4, the court held the plaintiffs had occupied a defined 5-acre portion openly and hostilely from 1981 until August 2014, when they were forcibly evicted. That eviction, occurring involuntarily after the filing of this suit, did not interrupt adverse possession. The defendant's eviction suit was time-barred under Section 7 of the Limitation of Actions Act. Judgment was entered as prayed in the Originating Summons, the eviction claim was dismissed, and costs were awarded to the plaintiffs.

Key legal issues

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01

When the plaintiffs entered and occupied the suit land

Holding

The plaintiffs entered in 1981 after purchase by the late Richard Eric Etori and remained in possession until August 2014 when they were forcibly evicted

Reasoning

The court found the defendant's evidence contradictory as to when the plaintiffs entered and left the land. PW2, a witness to the sale, was credible and corroborated by PW4. The defendant's own suit for eviction filed in August 2014 confirmed the plaintiffs were still in occupation, contradicting claims they had vacated in January 2014.

p. 3
02

Whether the plaintiffs' occupation extinguished the defendant's title by adverse possession

Holding

Yes - the plaintiffs' hostile, open and continuous occupation of a demarcated 5-acre portion for over 12 years extinguished the defendant's rights

Reasoning

The plaintiffs occupied a defined, demarcated portion from 1981, built homes and farmed it to the exclusion of others. The occupation was hostile because the defendant denied selling or permitting it. The 2nd plaintiff's structures proved occupation. The forcible eviction after filing suit was involuntary and did not interrupt the possession.

p. 3
03

Whether the defendant's eviction suit was time-barred

Holding

Yes - the eviction suit filed in August 2014 was barred by Section 7 of the Limitation of Actions Act

Reasoning

The defendant filed ELC Case No. 159 of 2014 seeking eviction more than 12 years after the plaintiffs entered the land in 1981. Under Section 7, an action to recover land may not be brought after twelve years from when the right of action accrued. The defendant's right to sue had thus expired.

p. 3

Legal principles established

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  • For a claim of adverse possession to succeed, the owner must have been dispossessed or discontinued use, and possession must be hostile, actual, open, uninterrupted, notorious, exclusive and continuous for 12 years
  • An action to recover land may not be brought after twelve years from when the right of action accrued
  • Consent or permission from the owner is not needed for a claim of adverse possession to accrue; hostile occupation suffices

Court orders

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  1. 1.Judgment entered as prayed in the Originating Summons dated 24th July 2014, declaring the plaintiffs owners of a portion measuring approximately 5 acres out of L.R No. North Teso/Angurai/474 by adverse possession
  2. 2.The defendant's claim for eviction (Bungoma ELC Case No. 159 of 2014) dismissed
  3. 3.Costs of the suit (treated as one suit after consolidation) awarded to the plaintiffs

Authorities

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Legislation

  • Limitation of Actions ActSection 7 (Cap 22)

Cases cited (1)

  • Kweyu Vs Omutut (1990) KLR 709
    (1990) KLR 709
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act and claims concerning title to land

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, "Abraham Jeremia Irukan v Rasomo Osilingi Omunyongor [2020] KEELC 3022 (KLR)", Case Analysis (2020). Civil Case No. 153 of 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3022/eng@2020-04-29

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