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ELCDismissedELC Case No 23 of 2016 (Bungoma)· [2021] KEELC 1 (KLR)

Njurukani & 2 others v Barasa (sued as personal representative of Barasa Waswa (Environment & Land Case 23 of 2016) [2021] KEELC 1 (KLR)

Environment and Land Court
20 September 2021
8,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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A Bungoma court ruled that people who forcefully evict a landowner can never claim that land through adverse possession, no matter how long they occupy it.

What this practically means

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Executive summary

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Three brothers sued the defendant, administratrix of the estate of Jonathan Barasa Mbotiki, seeking declarations of adverse possession over land parcel WEST BUKUSU/WEST SIBOTI/607, registration as proprietors, and costs. They alleged occupation since the 1960s-1980s following allocations by their father Morris Ndafu Mbotiki, and denied knowledge of the registered proprietor, Barasa Waswa. The defendant, a childless widow acting in person, averred she married Barasa Waswa in 1977, lived on the land until his death in 1993, and was forcefully evicted in 2008 when her house was burnt, thereafter seeking refuge in a church. The court found on the Green Cards that the suit land was registered to Barasa Waswa since 1 November 1972 while the plaintiffs' father held the larger parcel 524, and that the plaintiffs' claimed allocations (21 acres) could not fit in the suit land (20.8 acres). It found Barasa Waswa and Jonathan Barasa Mbotiki to be the same person, the defendant's late husband, and that the plaintiffs forcefully evicted the defendant in 2008. Possession acquired by force defeats adverse possession (nec vi nec clam nec precario), and the suit was in any event premature. The claim was dismissed. Relying on Odd Jobs v Mubia, the court held the ownership issue had been left to it and, invoking Section 61(1) of the Land Registration Act, declared the defendant entitled to the suit land by transmission, ordered her registration, eviction of the plaintiffs within three months, and a permanent injunction. Each party was to bear their own costs as a family dispute.

Key legal issues

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01

Whether the plaintiffs proved adverse possession

Holding

Claim failed; occupation was forcible and possession not exclusive or peaceful

Reasoning

The court found the land registered to Barasa Waswa since 1972; the father's allocations to the sons could only have been from his own larger parcel 524. The defendant lived on the land with her husband until his death in 1993 and was forcefully ejected in 2008, her house burnt. Forceful dispossession defeats adverse possession, and time had not run in any event.

p. 13
02

Identity of the registered proprietor

Holding

Barasa Waswa and Jonathan Barasa Mbotiki are one and the same person, the defendant's late husband

Reasoning

Although the plaintiffs denied knowledge of Barasa Waswa in their affidavits, their oral testimony revealed he was their uncle and the defendant's husband. The Chief's 2012 resolution letter and the father's Tribunal testimony confirmed the alias, as did the succession affidavit listing the suit land as the deceased's only property.

p. 8
03

Whether the Court could grant the defendant relief without a counterclaim

Holding

Yes; the ownership issue was canvassed and left to the Court

Reasoning

Applying Odd Jobs v Mubia and its progeny, the court held that where an unpleaded issue emerges from the course of the trial and evidence was led on it, judgment may be pronounced on it. Both parties led evidence on ownership and the defendant asked the Court for her land.

p. 16
04

Defendant's entitlement to the suit land

Holding

She is entitled to registration by transmission under Section 61(1) of the Land Registration Act; plaintiffs are trespassers liable to eviction

Reasoning

As administratrix of the sole registered proprietor's estate, she qualifies for transmission. The plaintiffs' continued occupation is a continuing trespass with no limitation bar per Isaack Ben Mulwa, justifying eviction and a permanent injunction under Section 152B of the Land Act.

p. 17

Legal principles established

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  • A claimant in adverse possession must prove occupation without force, without secrecy and without permission
  • One who forcefully evicts the registered proprietor cannot then claim the land by adverse possession regardless of length of occupation
  • A court may determine an unpleaded issue that the parties left to it for decision at trial
  • A personal representative is entitled to be registered by transmission in place of the deceased sole proprietor

Court orders

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  1. 1.The plaintiffs' claim is dismissed
  2. 2.A declaration is issued that land parcel NO WEST BUKUSU/WEST SIBOTI/607 is the property of the defendant
  3. 3.The defendant shall forthwith apply to the Land Registrar Bungoma who shall register her as proprietor of the parcel
  4. 4.The plaintiffs, their families, agents, servants and other occupants shall vacate the parcel within three months or be evicted
  5. 5.Thereafter the plaintiffs and those acting through them are permanently restrained from trespassing or doing acts prejudicial to the defendant's proprietary interests
  6. 6.Each party shall meet their own costs, this being a family dispute

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSections 13 and 17
  • Limitation of Actions ActSection 18
  • Constitution of Kenya 2010Articles 159(c), 10(2)(b), 27(3), 27(4) and (5)
  • Environment and Land Court ActSection 18
  • Land Registration ActSection 61(1)
  • Land ActSection 50; Section 152B
  • Registered Land Act (repealed)Section 119
  • Law of Succession Actgeneral

Cases cited (19)

  • Yaya Towers Ltd v Trade Bank Ltd (in Liquidation)
    C.A Civil Appeal No 35 of 2000 [2000 eKLR]
  • Benjamin Kamau & Others v Gladys Njeri
    C.A Civil Appeal No 213 of 1996
  • Kasuve v Mwaani Investment Ltd & Others
    2004 1 KLR
  • Wanje v Saikwa No 2
    1984 KLR 284
  • Kimani Ruchine & Another v Swift Rutherford & Company Ltd
    1980 KLR 10
  • Grace Wairimu Soroma v Chaka Ltd & Others
    2017 eKLR
  • Robert Shume & Others v Samson Kalama
    2015 eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    C.A Civil Appeal No 56 of 2014 [2015 eKLR]
  • Karuntimi Raiji v M'makinya M'itunga
    2013 eKLR
  • Macharia Mwangi Maina & Others v Davidson Mwangi Kagiri
    2014 eKLR
  • Caltex Oil (Kenya) Ltd v Rono Ltd
    C.A Civil Appeal No 97 of 2008 [2016 eKLR]
  • Joseph Mbuta Nziu v Kenya Orient Insurance Company Ltd
    2015 eKLR
  • Adetoun Oladeji (NIG) Ltd v Nigerian Breweries Plc
    S.C 91/2002
  • Odd Jobs v Mubia
    1970 E.A 476
  • Ngugi Ticha v Kiritu Ticha & Others
    C.A Civil Appeal No 40 of 2004 [2014 eKLR]
  • Uyas Industries v Diocese of Meru
    1982 KLR 114
  • Anne Nyathira v Samuel Mungai Mucheru & Others
    C.A Civil Appeal No 68 of 2015 NBI [2016 eKLR]
  • Isaack Ben Mulwa v Jonathan Mutunga Mweke
    C.A. Civil Appeal No 6 of 2015 [2016 eKLR]
  • EAK v VKM
    2021 eKLR
Jurisdiction invoked
Article 162(2) of the Constitution read with the Environment and Land Court Act; claim under Sections 7, 13, 17 and 38(1) 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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Cite this brief

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Cite this brief

Caselaw, "Njurukani & 2 others v Barasa (sued as personal representative of Barasa Waswa (Environment & Land Case 23 of 2016) [2021] KEELC 1 (KLR)", Case Analysis (2021). ELC Case No 23 of 2016 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1/eng@2021-09-20

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