Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedCivil Case No. 94 of 2018 (O.S)· [2020] KEELC 3083 (KLR)

Charles Owuor Abol v Samuel Muthee Gitonga [2020] KEELC 3083 (KLR)

Environment and Land Court
15 April 2020
AOA. Omollo
703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan court declared that a buyer who occupied land for over 20 years after paying in full had become its rightful owner through adverse possession.

What this practically means

#

Executive summary

#
The applicant took out an originating summons dated 28th November 2018 against the respondent, seeking a declaration that the respondent's right over approximately 2.80 hectares (3 acres) of LR. No. Bukhayo/Ebusibwabo/1257 had been extinguished by adverse possession, an order barring the respondent from the land, registration of the applicant as proprietor, and execution of transfer documents. The respondent was served on 13th December 2018 but neither entered appearance nor filed a defence, so the suit proceeded undefended. The applicant relied on his supporting affidavit and witness statement, annexing a sale agreement dated 5th December 1990 showing that the full purchase price of Kshs. 140,000 was paid on execution, and a certified copy of records showing the respondent as registered owner since 10th September 1990. He testified that he had occupied a demarcated 3 acres for over 20 years, built his homestead there, planted trees, and used the land peacefully and exclusively. The court found the facts uncontested, held that time for adverse possession began running in 1998 and had lapsed before filing, and applied the Sisto Wambugu v Kamau Njuguna principle that possession under a valid agreement becomes adverse when the licence is determined. Satisfied that the applicant met the civil standard of proof, the court entered judgment as prayed in the summons, but declined costs because the suit was undefended.

Key legal issues

#
01

Whether the applicant proved adverse possession of the suit land

Holding

Yes - the applicant entered under a sale agreement of 5th December 1990, paid the full purchase price, and has been in exclusive, peaceful and uninterrupted possession for over 20 years; time ran from 1998 and had lapsed by filing

Reasoning

The court found the applicant's uncontroverted evidence showed he came into possession through a sale agreement dated 5th December 1990, with the full purchase price of Kshs. 140,000 paid. It held time for adverse possession began running in 1998, and 12 years had elapsed by the time of filing. The applicant's homestead, trees and exclusive use of the demarcated 3 acres established actual possession meeting the Sisto Wambugu threshold, applying the Peter Mbiri Michuki requirements of possession as of right, nec vi, nec clam, nec precario.

p. 2

Legal principles established

#
  • Where a claimant is in exclusive possession of land with the leave and licence of the registered owner pursuant to a valid agreement, the possession becomes adverse and time begins to run when the licence is determined

Court orders

#
  1. 1.Judgment entered in favour of the applicant as prayed in the originating summons
  2. 2.No order as to costs, the suit having proceeded undefended

Authorities

#

Legislation

  • Limitation of Actions Act

Cases cited (2)

  • Peter Mbiri Michuki Vs Samuel Mugo Michuki
    (2014) eKLR
  • Sisto Wambugu Vs Kamau Njuguna
    (1983) KLR 172
Jurisdiction invoked
Originating summons under the Limitation of Actions Act in respect of a claim for adverse possession

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Charles Owuor Abol v Samuel Muthee Gitonga [2020] KEELC 3083 (KLR)", Case Analysis (2020). Civil Case No. 94 of 2018 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3083/eng@2020-04-15

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