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ELCPartially AllowedOriginating Summons dated 23rd September 2019 (Kisumu)· [2021] KEELC 13 (KLR)

Amos Odhiambo Juma v Shem Owiti Limbe & another [2021] KEELC 13 (KLR)

High Court of Kenya
1 October 2021
AOAntony Ombwayo
2,168 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The High Court in Kisumu gave a man ownership of land he had openly occupied and developed for over 25 years, without the owners' permission or objection.

What this practically means

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Executive summary

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The Applicant, Amos Odhiambo Juma, moved the High Court at Kisumu by Originating Summons dated 23rd September 2019 seeking a declaration that he had acquired approximately 0.08 hectares of land parcel KISUMU/MANYATTA 'A'/863 by adverse possession, rectification of the register to delete the names of Shem Owiti Limbe and James Ogumbo Omitto and substitute his own, vesting of title in him, and costs. He claimed the parcel was mistakenly registered in the 1st Defendant's name during adjudication instead of his father, and that he had openly occupied and developed the land - building a home, rental houses and planting trees - since 1994 without interruption. The 2nd Respondent, in a Replying Affidavit, asserted he and his late father were the registered proprietors, that the Applicant was a trespasser who entered in 2013, that any adjudication error should have been objected to under the Land Adjudication Act, and that fraud claims belong in criminal proceedings. At the hearing the Applicant adopted his affidavit and witness statement; his mother testified in support. The 2nd Respondent did not attend the hearing and filed no submissions. Applying Section 7 and Section 38(1) of the Limitation of Actions Act and the principles in Mtana Lewa v Kahindi Ngala Mwangandi and Mbira v Gachuhi, the court found uninterrupted, open and adverse possession exceeding 12 years, held the Respondent failed to prove trespass, and granted the declaration, rectification and vesting orders sought.

Key legal issues

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01

Whether the Applicant proved adverse possession of the suit property

Holding

Yes - the Applicant proved his case on a balance of probability, having occupied openly and continuously since 1994 without interruption

Reasoning

The Applicant deposed that he resided on the parcel since 1994 when his father relocated to Sakwa, established a home, built rental houses, collected rent and planted trees, all openly and without interruption for over 25 years. His mother confirmed this evidence. The 2nd Respondent, though filing a Replying Affidavit alleging trespass, did not adduce evidence showing how the Applicant trespassed and did not appear at the hearing or file submissions.

p. 4

Legal principles established

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  • Adverse possession requires possession asserted for 12 years while the title holder neglects to take action
  • The claimant must prove non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption
  • A party alleging trespass must adduce evidence of how the trespass occurred

Court orders

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  1. 1.Declaration that the Applicant acquired title to approximately 0.08 hectares comprised in L.R. No. KISUMU/MANYATTA 'A'/863 by Adverse Possession
  2. 2.Order directing rectification of the register by deleting the names of SHEM OWITI LIMBE and JAMES OGUMBO OMITTO and substituting the names of AMOS ODHIAMBO JUMA as proprietor, and that the Applicant be issued with the title deed
  3. 3.Order vesting title of the parcel in AMOS ODHIAMBO JUMA as absolute proprietor, with all necessary forms to be signed by the Deputy Registrar of the High Court as the situation may require

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Land Adjudication Act
  • Penal Code

Cases cited (4)

  • Josinter Atieno Ouma & Another vs Joshua O. Omiti & Another
    (2018) eKLR
  • Githu v Ndeete
    (1984) KLR
  • Mtana Lewa –v– Kahindi Ngala Mwangandi
    (2005) eKLR
  • Mbira –v– Gachuhi
    (2002) IEALR 137
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - application to the High Court for an order that the applicant be registered as proprietor by adverse possession

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, "Amos Odhiambo Juma v Shem Owiti Limbe & another [2021] KEELC 13 (KLR)", Case Analysis (2021). Originating Summons dated 23rd September 2019 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/13/eng@2021-10-01

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