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ELCDismissedELC Case No. 117 of 2016· [2020] KEELC 3887 (KLR)

Nicholas Oyiolo Balera & another v Joseph Buluma Obingo; Roman Buluma Obingo (Defending as legal representative of Joseph Buluma Obingo) (Substitute) [2020] KEELC 3887 (KLR)

Environment and Land Court
30 January 2020
2,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A landowner who waited 25 years to sue lost the disputed 2 acres because long, open occupation ripened into ownership through adverse possession.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of BUNYALA/BULEMIA/2577 since 1991 following a 1984 purchase, sued for eviction of the Defendant, an injunction, and damages for trespass. The Defendant, defending as legal representative of the deceased original defendant, asserted that his family had occupied a two-acre portion since the 1960s, having been gifted the land by the original owner, and claimed title by adverse possession, further asserting the suit was time-barred under section 7 of the Limitation of Actions Act. The court found the Plaintiffs' own evidence conceded the Defendant's family occupied the land before the purchase, that several of the Defendant's kin were buried there, and that trespass was therefore not proved. Applying Chevron v Harrison Charo Wa Shutu, Mweu v Kiu Ranching, and Adnam v Earl of Sandwich, the court held that the Plaintiffs' right of action had been extinguished by over twelve years of open, exclusive occupation; registration was deemed a trust for the Defendant. Following Gulam Mariam Noordin, the court accepted the adverse possession plea raised in a defence. The suit was dismissed, the Plaintiffs ordered to transfer the two-acre portion to the Defendant within 30 days, failing which the Deputy Registrar to execute the transfer, with each party bearing their own costs.

Key legal issues

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01

Whether the Plaintiffs proved trespass

Holding

Trespass was not proved; the Plaintiffs conceded the Defendant was on the land before purchase and did not prove entry without permission

Reasoning

The pleaded claim that the Defendant 'unlawfully moved in' was contradicted by the Plaintiffs' own evidence that the Defendant's family occupied the land before the 1984 purchase. Occupied land amounts to trespass only if the owner proves entry without permission, a burden the Plaintiffs failed to discharge.

p. 3
02

Whether the Plaintiffs' claim was time-barred under section 7 of the Limitation of Actions Act

Holding

Yes; the Plaintiffs registered in 1991 but sued in 2016, over 25 years later, so their title to the occupied portion was extinguished

Reasoning

Despite registration as proprietors in 1991, the Plaintiffs only sued in 2016. The Defendant's family openly lived on, cultivated and buried kin on the land for generations, demonstrating exclusive possession inconsistent with the Plaintiffs' title, thereby extinguishing the Plaintiffs' right of action.

p. 3
03

Whether the Defendant acquired the 2-acre portion by adverse possession

Holding

Yes; over twelve years of open, exclusive occupation and cultivation extinguished the Plaintiffs' title, deemed to be held in trust for the Defendant

Reasoning

The Defendant's possession of the 2-acre portion for well over twelve years was corroborated by the Plaintiffs' own evidence. Permission, if any existed, was determined by operation of law after twelve years. The Plaintiffs' registration of the occupied portion is deemed in equity and law a trust for the Defendant.

p. 3
04

Whether adverse possession pleaded only in a defence can sustain relief

Holding

Yes; following Gulam Mariam Noordin v Julius Charo Karisa, a limitation defence in an eviction action suffices; originating summons procedure is only required for a standalone registration claim

Reasoning

Adopting the Court of Appeal in Gulam Mariam Noordin, the court held that where a party is sued for vacant possession, the defence of limitation may be raised in the defence; Order 37 Rule 7 originating summons is only needed where a party applies to be registered as proprietor by adverse possession.

p. 3

Legal principles established

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  • An action to recover land may not be brought after twelve years from when the right of action accrued
  • Adverse possession is a fact observed on the land, not in the title documents
  • Statutes of limitation exist to quiet long continued possession where the rightful owner has slept on their rights
  • A defence of limitation/adverse possession may properly be raised in a defence to an action for eviction without an originating summons

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The Plaintiffs shall transfer to the Defendant the two-acre portion of the suit property at the Defendant's expense within 30 days, failing which the Deputy Registrar of the Environment and Land Court shall execute the necessary transfer documents on behalf of the Defendant
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Registration of Lands Act (Cap 300)referred to generally as Cap 300
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (6)

  • Adnam Vs Earl of Sandwich
    (1877) 2QB 485
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Mweu Vs Kiu Ranching & Farming Cooperative Society Ltd.
    [1985] KLR 430
  • Gulam Mariam Noordin Vs Julius Charo Karisa
    Civil Appeal No. 26 of 2015
  • Wabala v Okumu
    [1997] LLR 609 (CAK)
  • Bayete Co. Ltd v Kosgey
    [1998] LLR 813
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (implied by the court's mandate over land); no express provision cited in the judgment

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, "Nicholas Oyiolo Balera & another v Joseph Buluma Obingo; Roman Buluma Obingo (Defending as legal representative of Joseph Buluma Obingo) (Substitute) [2020] KEELC 3887 (KLR)", Case Analysis (2020). ELC Case No. 117 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3887/eng@2020-01-30

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