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ELCPartially AllowedELC Case No. 53 of 2019· [2020] KEELC 3069 (KLR)

Stephen M. Mbayi Makomere v Wycliffe Maheru [2020] KEELC 3069 (KLR)

Environment and Land Court
16 April 2020
NMN. A. Matheka
1,843 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 declared that a man who openly occupied and used family land for over 12 years owns it, despite his uncle holding the title.

What this practically means

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Executive summary

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The plaintiff, nephew of the defendant, brought an originating summons seeking to be declared owner of land parcel No. Marama/Shinamwenyuli/164 (approximately 0.38 hectares) by adverse possession, alleging he had lived on, occupied and used the parcel exclusively, openly, peacefully and continuously from birth, a period exceeding 50 years, and had buried family members thereon with the defendant's knowledge. He attributed the registration in the defendant's name to an error by the defendant's mother during the 1964 adjudication. The court considered sections 24(a) and 26(1) of the Land Registration Act, which protect registered title as absolute and indefeasible except on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme, and then applied the adverse-possession principles in Wambugu v Njuguna, Gerald Muriithi v Wamugunda Muriuki, Elijah Makeri Nyangw'ra and Kimani Ruchire v Swift Rutherfords, requiring possession nec vi, nec clam, nec precario for at least 12 years to the knowledge of the owner. Finding the plaintiff's evidence unchallenged and corroborated by PW2 and PW3, the court held he had been in exclusive, continuous and uninterrupted possession exceeding 12 years and had proved his case on a balance of probabilities. The court declared the defendant holds the suit land in trust for the plaintiff, declared the plaintiff owner by adverse possession, ordered transfer within 30 days with the Deputy Registrar to execute documents in default, and made no orders as to costs.

Key legal issues

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01

Whether adverse possession was established against a registered proprietor

Holding

Yes - the plaintiff proved exclusive, continuous, open and uninterrupted possession exceeding 12 years, unchallenged by the defendant, and thereby acquired title by adverse possession notwithstanding the defendant's registration

Reasoning

The court set out the statutory framework of the Land Registration Act protecting registered title, then applied the adverse-possession principles from Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords requiring dispossession or discontinuance of the owner's possession and possession nec vi, nec clam, nec precario for 12 years. The plaintiff's unchallenged evidence of occupation from birth, cultivation, development and burials on the land corroborated by PW2 and PW3 satisfied these principles on a balance of probabilities.

p. 2

Legal principles established

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  • Registration vests absolute ownership of land in the registered proprietor
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession the claimant must prove possession as of right - nec vi, nec clam, nec precario - continuous for at least 12 years with the owner's knowledge (actual or constructive)

Court orders

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  1. 1.Declaration that the defendant/respondent holds in trust for the plaintiff/applicant for land parcel No. Marama/Shinamwenyuli/164
  2. 2.That the plaintiff/applicant be declared the owner of land parcel No. Marama/Shinamwenyuli/164 by virtue of adverse possession and the defendant/respondent be ordered to transfer the said suit land to the plaintiff/applicant within 30 days from the date of the judgment, and in default the Deputy Registrar to sign the transfer documents
  3. 3.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actprovisions on adverse possession

Cases cited (5)

  • Elijah Makeri Nyangw'ra -vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (originating summons for adverse possession)

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, "Stephen M. Mbayi Makomere v Wycliffe Maheru [2020] KEELC 3069 (KLR)", Case Analysis (2020). ELC Case No. 53 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3069/eng@2020-04-16

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