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ELCAllowedCivil Case No. 148 of 2013 (formerly HCC 72B of 2012 (O.S))· [2020] KEELC 3091 (KLR)

Sylvester Joseph Makomere (Suing as Legal Rep. of the estate of Fabian Makomere Wambada v Jonathan Nakhale & another [2020] KEELC 3091 (KLR)

Environment and Land Court
15 April 2020
AOA. Omollo
2,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A family that bought and occupied land in 1973 won full ownership in Kenya's Environment and Land Court, even against a later registered title holder.

What this practically means

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Executive summary

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The applicant, as legal representative of the estate of Fabian Makomere Wambada, brought an originating summons under the Limitation of Actions Act claiming 2 acres by adverse possession from parcels Bukhayo/Kisoko/6364 and 6365, sub-divided from Bukhayo/Kisoko/5352, together with orders compelling the respondents to sign sub-division and transfer documents and costs. The respondents, Jonathan and Teresina Nakhale, opposed, admitting a 1972 sale of one acre to the deceased but asserting an unpaid purchase balance, disputing the exhibited sale agreements, and relying on a pending CMCC No. 48 of 2010 by the 2nd respondent, who obtained title to parcel 6365 in 2007. The court framed four issues: commencement of limitation, size of the land sold, entitlement to adverse possession, and costs. It held possession ran from 1973 (not 1983 as the defence submitted), that the alleged unpaid balance was contradicted across the defence evidence and in any event barred after six years under section 4 of the Limitation of Actions Act, and that occupation was open and uninterrupted for over twelve years. The 2nd respondent's 2007 registration could not defeat the accrued adverse possession; she held the title in trust for the estate. The court found the applicant had dispossessed the respondents of both parcels and granted the adverse possession claim, awarding costs to the applicant.

Key legal issues

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01

When time began to run for adverse possession

Holding

Possession ran from 1973; occupation exceeded 12 years by either 1980 or 1983 dates, and long before the 2007 registration or the 2010 suit.

Reasoning

The respondents conceded Fabian was put in possession in 1973 and built his home. Their reliance on 1983 as the date of full payment was inconsistent with their own pleadings and evidence. Even from 1983, twelve years elapsed long before the suit or the 2010 CMCC case, so limitation ran in the applicant's favour.

p. 3
02

Whether an unpaid balance of purchase price defeats the adverse possession claim

Holding

The alleged balance was not proved; the respondents' accounts contradicted each other and in any event such a contractual claim was time-barred after six years.

Reasoning

The 1st respondent pleaded a balance of Kshs.2,050 but orally said Kshs.150; the 2nd respondent said Kshs.1,050. No contrary agreement was produced. Even if unpaid, a contract claim is barred under section 4 of the Limitation of Actions Act after six years, so the alleged balance could not interrupt possession.

p. 3
03

Extent of the land sold and held by adverse possession

Holding

The applicant proved possession of both parcels 6364 and 6365, totalling 1¾ acres, notwithstanding the sale agreement indicating 1½ acres.

Reasoning

The combined parcels measure 0.70ha (1¾ acres). The 1st respondent showed no objection to the applicant having 6364. The 2nd respondent admitted Fabian's sons occupied 6365 before her title issued in 2007, and her pleaded 2008 invasion contradicted the 1973 sale date, casting doubt on her claim.

p. 3

Legal principles established

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  • Adverse possession is calculated from the date of payment of the purchase price to the full span of twelve years where the purchaser takes possession, because the true owner is dispossessed from that date.
  • Registration of a later title over land already occupied under adverse possession for over 12 years does not defeat that possession; the registered owner holds it in trust for the adverse possessor.
  • A claim for an unpaid balance of purchase price under contract is barred six years after accrual.

Court orders

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  1. 1.Declaration that the applicant acquired ownership and title to 2 acres by adverse possession from parcels Bukhayo/Kisoko/6364 and 6365 (court finds the estate entitled to the two suit titles)
  2. 2.Costs of the suit awarded to the applicant
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act in relation to land known as Bukhayo/Kisoko/5352, 6364 and 6365; Limitations of Actions Act

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, "Sylvester Joseph Makomere (Suing as Legal Rep. of the estate of Fabian Makomere Wambada v Jonathan Nakhale & another [2020] KEELC 3091 (KLR)", Case Analysis (2020). Civil Case No. 148 of 2013 (formerly HCC 72B of 2012 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3091/eng@2020-04-15

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