Vincent Wafula Juma v John Muyoma Makhanu [2020] KEELC 3077 (KLR)
The bottom line
#A Bungoma court gave a man the 1 acre he had openly lived on since 1991, ruling his brother's title had expired through adverse possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved adverse possession of 1 acre of the suit land
Yes; the plaintiff occupied the portion openly, peacefully and without interruption since 1991, exceeding the statutory 12 years, so the defendant's title to that portion was extinguished
Relying on Kasuve v Mwaani Investments Ltd the court required proof of exclusive, open, peaceful occupation for 12 years without interruption. The plaintiff was given the 1 acre by his father in 1991 and had lived on it since. The defendant, though served, did not attend trial, leaving the evidence uncontroverted. The defendant acquired title only on 15 September 2004, so more than 12 years elapsed before suit. Prior eviction suits were not proved as no pleadings or judgments were availed.
Whether the defendant holds 1 acre of the suit land in trust for the plaintiff
Yes, in the alternative; the defendant, being the eldest brother who never purchased the land, holds it in trust for his siblings
The uncontroverted evidence established that the suit land is a sub-division of the original parcel BOKOLI/KITUNI/310 belonging to the parties' late father, who distributed shares to his children before obtaining titles. The defendant, as eldest brother and administrator, neither purchased the original nor the resultant land, so he can only be holding it for his younger siblings. Possession since 1991 creates an overriding interest per Obiero v Obiero.
Burden of proving prior suits alleged to interrupt adverse possession
The party alleging the prior suits bore the burden of producing their pleadings, proceedings and judgments, which the defendant failed to do
The defendant relied on Webuye RMCC No 255 of 2006 and Bungoma HCCC No 37 of 2006 (later ELC No 16 of 2012) but produced no pleadings, proceedings or judgments. Applying the rule that a party wishing the court to believe in a fact must lead evidence of it, the court held it could not determine what effect, if any, those suits had, and that occupation since 1991 was not interrupted.
Legal principles established
#- A claimant seeking land by adverse possession must prove exclusive possession openly, as of right and without interruption for 12 years, either after dispossessing the owner or discontinuation of possession by the owner
- Sections 7, 13 and 17 of the Limitation of Actions Act extinguish the title of the registered proprietor at the expiry of 12 years of adverse possession
- Possession and occupation of land creates an overriding interest
Court orders
#- 1.An order that the plaintiff is entitled to 1 acre out of the land parcel NO BOKOLI/KITUNI/1246 by way of adverse possession
- 2.The defendant shall execute all the necessary documents to facilitate the transfer of 1 acre out of the land parcel NO BOKOLI/KITUNI/1246 in the names of the plaintiff within 30 days of the Judgment
- 3.In default, the Deputy Registrar shall be at liberty to execute the documents on behalf of the defendant
- 4.Each party to meet their own costs
- Jurisdiction invoked
- Originating Summons under Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22) and Order 37 of the Civil Procedure Rules; Environment and Land Court jurisdiction under the Land Registration Act 2012 and Land Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vincent Wafula Juma v John Muyoma Makhanu [2020] KEELC 3077 (KLR)", Case Analysis (2020). ELC CASE NO. 167 OF 2016 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3077/eng@2020-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.