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ELCAllowedOriginating Summons (Kisumu ELC) re parcel KISUMU/KOCHIENG'/2836· [2020] KEELC 3056 (KLR)

Kano Kajulu Farmers Cooperative Society Ltd v County Land Registrar, Kisumu & another [2020] KEELC 3056 (KLR)

Environment and Land Court
27 April 2020
1,543 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff society sued by Originating Summons claiming the whole of land parcel KISUMU/KOCHIENG'/2836 (0.30 Ha) by adverse possession. It relied on a sale agreement dated 18th April 1977 between the registered owner, Onyango Oyoo (deceased), and the Plaintiff, under which the purchase price was paid in full and the Plaintiff took possession, fencing the parcel and constructing a store and office block, occupying it undisturbed for over 41 years. The Land Control Board consent was never obtained within six months, rendering the transaction void under the Land Control Act, from which time the Plaintiff's possession became adverse. In 2013 the parcel was transferred to the 2nd Defendant, the deceased's daughter-in-law, who never obtained letters of administration; the Plaintiff pleaded that this transfer was irregular and fraudulent. The Defendants were properly served but filed no response and tendered no evidence, so the suit proceeded by written submissions. Applying the Court of Appeal decision in Samuel Miki Waweru v Jane Njeri Richu, the court held that when a controlled transaction becomes void for lack of consent, continued possession becomes adverse by operation of law; the Plaintiff's adverse possession ran from October 1977 and the deceased's title was extinguished by the end of 1989, so the 2013 transfer could not interrupt it. The court found the case proved on a balance of probabilities, declared the transfer null and void, cancelled the 2nd Defendant's title deed, and ordered the parcel transferred and registered in the Plaintiff's name, with the Deputy Registrar to sign the relevant documents and the Respondents to pay the Plaintiff's costs.

Key legal issues

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01

Whether a purchaser in a land-controlled transaction can claim by adverse possession where consent was never obtained

Holding

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

Reasoning

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.

p. 2
02

Whether the transfer to the 2nd Defendant, effected without letters of administration, was valid

Holding

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

Reasoning

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.

p. 1

Legal principles established

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  • 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

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

Authorities

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Legislation

  • Land Control ActSections 6(1), 8(1)
  • Limitation of Actions ActSections 7, 13(1), 37, 38
  • Constitution of Kenya, 2010Article 40

Cases cited (3)

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

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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, "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.