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ELCDismissed(formerly High Court Civil Case No. 234 of 1995 (O.S))· [2020] KEELC 3494 (KLR)

Abraham Barasa Songoi v Dismas Wanyama Mawani [2020] KEELC 3494 (KLR)

Environment and Land Court
20 February 2020
BOBoaz N. Olao
3,392 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A 25-year-old adverse possession claim over 3 acres failed because the land was disputed and never clearly identified.

What this practically means

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Executive summary

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This was an adverse possession claim originally filed at the High Court in Kakamega as Civil Case No. 234 of 1995 (O.S) and transferred to the Environment and Land Court in 1999. The plaintiff, administrator of the estate of Charles Barasa (registered proprietor of parcel KIMILILI/KAMUKUYWA/630), sought a declaration that the defendant's rights over about 3 acres of the suit land, KIMILILI/KAMUKUYWA/631 (registered in the defendant's name since 1996, formerly his late father's), had been extinguished by adverse possession, that the defendant held it in trust for him, and an order for registration of the portion in his name under Section 38 of the Limitation of Actions Act, claiming occupation since 17th August 1965. The defendant denied peaceful and exclusive occupation, contending the disputed 3 acres was the subject of a long-running boundary dispute dating back to 1945, confirmed by a 1952 case, subsequent land office summons, and the dismissed Kakamega HCCC No. 94 of 1991. The court found the claim unproved on two grounds: the occupation was not peaceful or exclusive given decades of unceasing boundary disputes, and the plaintiff described the land claimed only as '3 acres or thereabouts', failing to establish exclusive possession of an identifiable portion as required. The suit was dismissed with costs to the defendant on 20th February 2020, with right of appeal explained.

Key legal issues

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01

Whether the plaintiff established adverse possession of 3 acres of the suit land

Holding

The claim failed: the possession was neither peaceful nor exclusive, and the portion claimed was not definitively identified

Reasoning

The court found that the parties and their predecessors had been engaged in boundary disputes from as far back as 1945, evidenced by litigation, land office summons and letters. Possession contended with such persistent dispute cannot be peaceful within the meaning of nec vi nec clam nec precario. Further, describing the land claimed only as '3 acres or thereabouts' betrayed a lack of exclusive possession of an identifiable portion, making a decree unworkable.

p. 3

Legal principles established

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  • Adverse possession requires proof of exclusive possession of an identifiable portion of the suit land
  • Possession claimed by adverse possession must be peaceful, open and without force, secrecy or evasion

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit to the defendant

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSections 7, 13 and 17

Cases cited (7)

  • BENJAMIN KAMAU .V. GLADYS NJERI
    C.A CIVIL APPEAL NO 2136 OF 1996
  • TITUS KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS
    C.A CIVIL APPEAL NO 35 OF 2002 [2004 eKLR]
  • KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFORD & CO LTD
    1980 KLR 10
  • PETER KAMAU NJAU .V. EMMANUEL CHARO TINGA
    C.A CIVIL APPEAL NO 29 OF 2016
  • GRACE WAIRIMU SORORA .V. CHAKA LTD & OTHERS
    2017 eKLR
  • SAMMY MWANGANGI & 10 OTHERS .V. COMMISSIONER OF LANDS & OTHERS
    C.A CIVIL APPEAL NO 30 OF 2013 [2018 eKLR]
  • JOSEPH MUTAFARI SITUMA .V. NICHOLAS MAKHANU CHERONGO
    C.A CIVIL APPEAL NO 351 OF 1995 [2007 eKLR]
Jurisdiction invoked
Original jurisdiction over the transferred Originating Summons (transferred from the High Court, Kakamega, in 1999); claim brought under Section 38 of the Limitation of Actions Act.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Abraham Barasa Songoi v Dismas Wanyama Mawani [2020] KEELC 3494 (KLR)", Case Analysis (2020). (formerly High Court Civil Case No. 234 of 1995 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3494/eng@2020-02-20

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