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ELCPartially AllowedELC Case No. 2 of 2019· [2020] KEELC 3535 (KLR)

Ali Juma Songito v Sheban Osundwa Wesonga [2020] KEELC 3535 (KLR)

Environment and Land Court
19 February 2020
1,977 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega ruled that living openly on someone's land for over 12 years can make you its legal owner, even without a title deed.

What this practically means

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Executive summary

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The plaintiff, Ali Juma Songito, claimed to have been in open and uninterrupted possession of land parcel N/Wanga/Kholera/2016 (later subdivided to N/Wanga/Kholera/2083) since 1985, pursuant to a sale agreement with the late Juma Luta Osundwa, and sought a declaration of adverse possession, cancellation of the defendant's title, and transfer of 2 acres to him. The defendant, grandson of the late Juma Luta Osundwa and registered proprietor of the suit parcel, asserted that the plaintiff was only given a 100 ft x 100 ft plot as temporary refuge in 1984 after fleeing Bulimbo, that he never left, and that the plaintiff's 1985 sale agreement was a forgery. The court applied sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and the adverse possession principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords. Perusing the 1985 agreement, the court found it valid and not a forgery, and that it covered 2 acres. Finding the plaintiff in exclusive, continuous and uninterrupted possession for over 12 years, the court held he had proved his case on a balance of probabilities. On 19 February 2020 the court declared the defendant holds 2 acres of parcel N/Wanga/Kholera/2083 in trust for the plaintiff, declared the plaintiff owner of that portion by adverse possession, and ordered the defendant to transfer it within 30 days, failing which the Deputy Registrar to sign the transfer documents. No orders were made as to costs.

Key legal issues

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01

Whether the plaintiff acquired title to 2 acres of the suit land by adverse possession

Holding

Yes. The court found the plaintiff had been in exclusive, continuous and uninterrupted possession, occupation and open use of the portion for a period in excess of 12 years, established on a balance of probabilities

Reasoning

The plaintiff produced a 1985 sale agreement for 2 acres and the green card, took possession in 1985, and built permanent and semi-permanent houses. PW2 and PW3 corroborated his evidence. The court found the agreement valid and not a forgery despite the defendant's assertion. Possession was continuous and not broken for any temporary purposes or endeavours to interrupt it.

p. 2
02

Validity of the 1985 sale agreement alleged to be a forgery

Holding

The court found the agreement valid and not a forgery

Reasoning

The plaintiff produced the agreement dated 1985 and the green card; the court perused the agreement and confirmed the size of land sold to the plaintiff was 2 acres. The defendant's claim of forgery was not accepted. The defendant conceded the plaintiff resided on the land, and the dispute was only over the size occupied.

p. 2
03

Indefeasibility of the defendant's registered title under the Land Registration Act

Holding

The court applied sections 24(a) and 26(1) of the Land Registration Act on the absolute and indefeasible nature of registered title, but found the plaintiff's adverse possession claim capable of defeating the defendant's title over the occupied portion

Reasoning

The court set out the statutory framework vesting absolute ownership in the registered proprietor and the two statutory grounds for challenging a title. It then applied the adverse possession principles, holding that the plaintiff's 12 years of possession established his entitlement by virtue of adverse possession notwithstanding the registration of the defendant.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject only to challenge on grounds of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, a claimant must prove continuous, open possession as of right (nec vi, nec clam, nec precario) for the statutory period of 12 years
  • Adverse possession under the Limitation of Actions Act contemplates two concepts: dispossession of the proprietor or discontinuance of possession by the proprietor for the statutory period

Court orders

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  1. 1.Declaration that the respondent holds in trust for the plaintiff a portion measuring 2 acres of land parcel No. N/Wanga/Kholera/2083, a subdivision of land parcel N/Wanga/Kholera/2016
  2. 2.Declaration that the plaintiff is the owner, by adverse possession, of the 2-acre portion of land parcel No. N/Wanga/Kholera/2083 which he occupies
  3. 3.Order that the defendant transfer the suit land to the plaintiff within 30 days of the judgment, and in default the Deputy Registrar to sign the transfer documents
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions ActProvisions on adverse possession (referred to generally)

Cases cited (5)

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri v Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire v Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to ownership, title and adverse possession of land

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, "Ali Juma Songito v Sheban Osundwa Wesonga [2020] KEELC 3535 (KLR)", Case Analysis (2020). ELC Case No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3535/eng@2020-02-19

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