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ELCDismissedOriginating Summons dated 10th April 2018 (filed 11th April 2018)· [2020] KEELC 3072 (KLR)

Judith Walekhwa v Ronald Olunga & 2 others [2020] KEELC 3072 (KLR)

High Court of Kenya (Environment and Land Division), Bungoma
12 March 2020
BOBoaz N. Olao
3,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Bungoma dismissed a woman's claim to land she occupied for decades because her occupation was interrupted by a 1988 lawsuit and was not peaceful.

What this practically means

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Executive summary

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Judith Walekhwa sued Ronald, Hilary and James Obiero Olunga by Originating Summons dated 10th April 2018, seeking to be registered as proprietor of parcels BUNGOMA/KAMAKOIWA/1314, 1315 and 1316 (sub-divisions of the original parcel 536) by way of adverse possession, together with an injunction and an order that the Deputy Registrar execute transfer instruments. She claimed she had lived on the land since her marriage to the deceased Gabriel Walekhwa Olunga in 1981, that Anzelimo Rapando Olunga had fraudulently registered himself as proprietor in 1983, and that the defendants' titles had been extinguished after 37 years of continuous, open and peaceful occupation. The defendants, through the 1st defendant's replying affidavit, contended that the 1988 Kakamega High Court suit filed by Anzelimo against the deceased demonstrated hostility that defeated the claim. Olao J set out the settled principles from Kasuve v Mwaani, Githu v Ndeete, Mtana Lewa and Grace Wairumu Soroma v Chaka Ltd: the claimant must prove exclusive, open, peaceful and uninterrupted occupation for 12 years, not by force, stealth or licence. The court held the occupation was interrupted in 1988 when Anzelimo sued the deceased after only 7 years of occupation, stopping the running of time, and that the occupation was not peaceful, being marked by arbitration before the Assistant Chief in 1986 and a Land Disputes Tribunal case in 1990. The court distinguished Muriithi Jeremiah, holding that change of ownership of the land did not interrupt the claim, and held the plaintiff properly sued in her own capacity, not as administratrix. Two conflicting consent orders in the 1988 suit were noted but the court declined to adjudicate their genuineness. The suit was dismissed with each party bearing their own costs given the parties' relationship.

Key legal issues

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01

Whether the plaintiff's occupation since 1981 was continuous for the statutory 12 years

Holding

The occupation was interrupted in 1988 when Anzelimo filed Kakamega HCCC No 82 of 1988 against the deceased, at which point the plaintiff had been in occupation only 7 years; the filing of that suit stopped the running of the limitation period

Reasoning

Anzelimo, the registered proprietor, sued the deceased and his mother in 1988 for interfering with his use of the original parcel. The court held that the claim affected the plaintiff as spouse of the deceased because her occupation was intertwined with his; the suit therefore arrested time before 12 years had accrued.

p. 4
02

Whether the occupation was peaceful

Holding

The occupation was not peaceful, being characterized by hostility, arbitrations before the Assistant Chief in 1986, elders, and a Land Disputes Tribunal case in 1990

Reasoning

The record showed repeated disputes between the deceased and Anzelimo, including arbitration by the Assistant Chief of Milimu Sub-Location on 18th January 1986 and proceedings before the Land Disputes Tribunal at Tongaren Division filed on 6th November 1990, confirming hostility. Peaceful occupation being an essential element, its absence was fatal to the claim.

p. 4
03

Whether the suit was defective for want of authority to sue on behalf of the deceased's estate

Holding

The suit was properly filed by the plaintiff in her own capacity as a party in occupation, not as administrator of the estate

Reasoning

The Originating Summons named the plaintiff as plaintiff, suing on her own behalf as a person in occupation since 1981. The Wambui v Ougo bar on suing without a grant would only have applied had she moved to court as administrator of the deceased's estate.

p. 3
04

Whether registration of parcel 1315 in the 3rd defendant's name in 2017 meant the 12-year period had not lapsed

Holding

The Muriithi Jeremiah authority relied on by the defendants was distinguishable; time ran from first registration of the original parcel in Anzelimo's name on 18th April 1983

Reasoning

The three suit parcels were sub-divisions of the original parcel BUNGOMA/KAMAKOIWA/536. Change of ownership does not interrupt a claim for adverse possession, so the later registration of parcel 1315 in 2017 did not reset time. The suit, filed in 2018, came some 35 years after first registration.

p. 3

Legal principles established

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  • A claimant seeking registration as proprietor by adverse possession must prove exclusive possession of the land openly and as of right without interruption for 12 years
  • Under Sections 7, 13 and 17 of the Limitation of Actions Act, the title of a registered proprietor is extinguished in favour of an adverse possessor at the expiry of 12 years
  • Adverse possession must be had not by force, stealth or licence of the owner - nec vi, nec clam, nec precario - and the occupation must be peaceful
  • Time for purposes of adverse possession ceases to run when the owner asserts his right by taking legal action or an effective entry, or when his right is admitted by the adverse possessor
  • Change of ownership of the suit land does not interrupt a claim for adverse possession

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 38(1)
  • Land Registration ActSection 28(h)
  • Land ActSection 7
  • Constitution of Kenya2010 Constitution (promulgation noted)

Cases cited (10)

  • KASUVE .V. MWAANI INVESTMENTS LTD & 4 OTHERS
    2004 1 KLR 184
  • WANJE .V. SAIKWA
    1984 KLR 284
  • BENJAMIN KAMAU & OTHERS .V. GLADYS NJERI
    C.A CIVIL APPEAL NO 2136 OF 1999
  • R. V. OXFORDSHIRE CC EXPARTE SUNNINGWELL PARISH COUNCIL
    1999 3 ALL E.R 391
  • KIMANI BUCHINE .V. SWIFT RUTHERFORD & CO LTD
    1980 KLR 10
  • GRACE WAIRUMU SOROMA .V. CHAKA LTD & OTHERS
    2017 eKLR
  • MTANA LEWA .V. KAHINDI NGALA MWANGANDI
    C.A CIVIL APPEAL NO 56 OF 2014 (2015 eKLR)
  • GITHU .V. NDEETE
    1984 KLR 776
  • WAMBUI .V. OUGO & ANOTHER
    1982 – 88 KAR [1987 eKLR]
  • MURIITHI JEREMIAH .V. NELSON KINGURU KERUGOYA
    ELC CASE NO 818 OF 2013 (O.S)
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (Cap 22) - application to the High Court to be registered as proprietor by 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, "Judith Walekhwa v Ronald Olunga & 2 others [2020] KEELC 3072 (KLR)", Case Analysis (2020). Originating Summons dated 10th April 2018 (filed 11th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3072/eng@2020-03-12

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