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ELCAllowedOriginating Summons dated 4th November 2013 (Kisii ELC, transferred to Migori)· [2020] KEELC 3387 (KLR)

Creistina Ogur Ogot v Joshua Nyangacha Abonyo & 5 others [2020] KEELC 3387 (KLR)

Environment and Land Court
12 February 2020
2,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Migori Environment and Land Court transferred 8 acres to a woman who had openly farmed and lived on the land for over 12 years without permission.

What this practically means

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Executive summary

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The plaintiff, widow of the late Petro Got, claimed 8 acres of the original parcel Kanyamkago/Kamgundho/7 (21.50 hectares) in Migori County by adverse possession, by originating summons filed 4th November 2013, converted by consent into a plaint-type suit before Okongo J and transferred to the Migori Environment and Land Court in 2017. She alleged occupation since 1959 (or 1972), erecting permanent homesteads and cultivating the land openly and peacefully until the defendants asserted title in 2013. The defendants, led by the 1st defendant as legal representative of the deceased co-owner Abonyo Ochola, denied the claim, asserting the land was jointly registered in 1977 in the names of the deceased and the 2nd defendant, that occupation was not peaceful (citing arbitrations before local administrators), and questioning locus. The court, framing the issues on the adverse-possession doctrine restated in Godfrey Shimonya Peter and Wilson Kazungu Katana, found the land registered in the names of the deceased and the 2nd defendant, but concluded on the testimony of the plaintiff's witnesses and, significantly, the defendants' own witnesses (DW1 to DW5), that the plaintiff had openly and notoriously occupied the land with homesteads, livestock and cultivation for well over twelve years without permission. Judgment was entered for the plaintiff: a declaration that the defendants' title to the 8 acres is barred and extinguished under the Limitation of Actions Act, an order for her registration as proprietor (with transfer to be executed by the 1st and 2nd defendants, failing which the Deputy Registrar), a permanent injunction, and costs to the defendants.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession to 8 acres of Kanyamkago/Kamgundho/7

Holding

Yes - the plaintiff has been in open and notorious possession and occupation of the suit property for over 12 years, extinguishing the defendants' title

Reasoning

The court found the land registered in the names of the deceased (represented by the 1st defendant) and the 2nd defendant since 1977, not the plaintiff. Oral testimony of PW1 to PW4 and, decisively, the defendants' own witnesses (DW1 to DW5) confirmed the plaintiff had occupied the land with homesteads and cultivation since the 1960s/1972 without permission or interruption. On the authorities (Githu v Ndeete, Godfrey Shimonya Peter, Wilson Kazungu Katana), the elements of adverse possession were established and the defendants' case substantially failed.

p. 4
02

Whether the defendants' claim that possession was permissive (not adverse) succeeds

Holding

No - the defendants did not establish licence or consent; even their evidence corroborated long, open occupation

Reasoning

The defendants alleged the occupation was not peaceful, citing arbitrated disputes before the chief, District Commissioner and County Commissioner. However DW1 admitted the plaintiff had never been evicted and occupied about eight acres; DW2, DW3 and DW4 confirmed her homesteads and cultivation over 30-plus years. Relying on Virginia Wanjiku Mwangi, the court noted permission negates adverse possession, but found no permission proved; the defence case substantially failed.

p. 4

Legal principles established

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  • The doctrine of adverse possession requires that the land be registered in the name of a person other than the applicant, that the applicant be in open and exclusive possession adverse to the owner's title, and that occupation exceed twelve years with dispossession or discontinuance of possession by the owner
  • Evidence of adverse possession must be definite as to the area and the time of occupation
  • Adverse possession is an overriding interest on registered land under section 28(h) of the Land Registration Act

Court orders

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  1. 1.Declaration that the defendants' rights to recover the portion of LR No. Kanyamkago/Kamgundho/7 measuring 8 acres are barred under the Limitation of Actions Act Cap 22 and their title thereto extinguished, the plaintiff having openly, peacefully and continuously occupied the land for over 12 years
  2. 2.Order that the plaintiff be registered as proprietor of the 8-acre portion of Kanyamkago/Kamgundho/7; the 1st defendant (as legal representative of the estate) and the 2nd defendant to execute a valid transfer in default of which the Deputy Registrar of the court to execute
  3. 3.Permanent injunction restraining the defendants, their agents, servants and/or employees from interfering with the plaintiff's peaceful possession and occupation of the said portion
  4. 4.Costs of the originating summons to be borne by the defendants

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Land Registration ActSection 28(h)
  • Law of Succession ActSection 54 and 5th Schedule (grant ad litem)
  • Registered Land Act (repealed)Sections 27 and 28

Cases cited (14)

  • Mate Gitabi v Jane Kabubu Muga and another
    Nyeri Civil Appeal No. 43 of 2015 (UR)
  • Murunga Kabanga and 2 others v Hannah Wairimu Gitau and another
    (2019) eKLR
  • Titus Kigoro Munyi v Peter Mburu Kimani
    (2015) eKLR
  • Galaxy Paints Company Ltd v Falcon Grounds Ltd
    (2002) 2 EA 385
  • Great Lakes Transport Company (U) Ltd v Kenya Revenue Authority
    (2009) KLR 720
  • Godfrey Shimonya Peter and 3 others v Mary Anyango Ameka and another
    (2018) eKLR
  • Wilson Kazungu Katana and 101 others v Salim Abdalla Bakshwein and another
    Civil Appeal 11 of 2014 (2015) eKLR
  • Gatimu Kinguru v Muya Gathangi
    (1976) KLR 253
  • Tayebali Adamji Alibhai v Abdulhussein Adamji Alibhai
    (1938) 5 EACA 1
  • Salim v Boyd
    (1971) EA 550
  • Virginia Wanjiku Mwangi v David Mwangi Jotham Kamau
    (2013) eKLR
  • West Bank Estate Ltd v Arthur
    (1966) 3 WLR 750
  • Muthuita v Wanoe and 2 others
    (2008) 1 KLR (G&F) 1024
  • Githu v Ndeete
    (1984) KLR 776
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land within Migori County; suit transferred from Kisii Environment and Land Court by order of Mutungi J on 12th June 2017

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, "Creistina Ogur Ogot v Joshua Nyangacha Abonyo & 5 others [2020] KEELC 3387 (KLR)", Case Analysis (2020). Originating Summons dated 4th November 2013 (Kisii ELC, transferred to Migori). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3387/eng@2020-02-12

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