Kano Kajulu Farmers Cooperative Society Ltd v County Land Registrar, Kisumu & another [2020] KEELC 3056 (KLR)
The bottom line
#A Kenyan co-operative that occupied land for over 40 years won ownership through adverse possession, even though the original sale became legally void.
What this practically means
#Executive summary
#Key legal issues
#Whether a purchaser in a land-controlled transaction can claim by adverse possession where consent was never obtained
Yes - the transaction became void in October 1977 for want of consent under sections 6(1) and 8(1) of the Land Control Act, and the Plaintiff's possession became adverse from that date; the deceased's title was extinguished by 1989 and the subsequent transfer to the 2nd Defendant did not interrupt adverse possession
The court applied the Court of Appeal's holding in Samuel Miki Waweru that when a controlled transaction becomes void for lack of consent, the vendor's permission is terminated by operation of law and continued possession becomes adverse. The Plaintiff proved a 1977 sale agreement, payment in full, and continuous, peaceful, exclusive possession for over 41 years, unchallenged by any defendant who filed no response.
Whether the transfer to the 2nd Defendant, effected without letters of administration, was valid
The transfer was irregular and fraudulent and therefore null and void; in any event the 2nd Defendant took subject to the Plaintiff's accrued adverse possession and holds the title in trust for the Plaintiff
The Plaintiff established that the 2nd Defendant neither applied for nor obtained letters of administration of the deceased's estate, so she lacked capacity to transfer the parcel to herself in 2013. The court found the transfer irregular and fraudulent. Further, the deceased's title had already been extinguished by adverse possession by the end of 1989, so the subsequent transfer could not defeat the Plaintiff's claim.
Legal principles established
#- Where a purchaser in a controlled transaction is permitted possession pending completion and the transaction becomes void for lack of Land Control Board consent, the permission is terminated by operation of law and continued possession, if not illegal, becomes adverse from the time the transaction became void
Court orders
#- 1.The Plaintiff is entitled to the whole land parcel no. KISUMU/KOCHIENG'/2836 measuring approximately 0.30 Ha 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 and proprietary interest in the whole parcel is extinguished by operation of law by adverse possession; 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 parcel transferred and registered in the name of the Plaintiff, with 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 - application to the High Court (ELC) for an order that a person entitled by adverse possession be registered as proprietor
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 3056 (KLR)", Case Analysis (2020). Originating Summons (Kisumu ELC) re parcel KISUMU/KOCHIENG'/2836. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3056/eng@2020-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.