James Barasa Mukoleli v David Lusweti Wasike & 2 others [2021] KEELC 115 (KLR)
The bottom line
#A Bungoma court awarded a buyer 4 acres by adverse possession, showing long open occupation of purchased land can defeat even a registered title holder.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff acquired 4.0 acres of parcel SOUTH MALAKISI/SOUTH NAMWELA/737 by adverse possession
Yes. The plaintiff entered in 1995 under a sale agreement with the then registered proprietor (1st defendant) and was in open, exclusive, peaceful and uninterrupted occupation; by 1st February 2008 when the title was closed, his overriding interest had crystallised, and the 2nd defendant never sued to interrupt his possession.
The court found the sale agreement of 11th September 1995 proved, that the plaintiff took immediate possession, and that no suit by the 2nd defendant ever interrupted the possession. The 2nd defendant only sued JOB WENANI. Applying the Kasuve, Kimani Ruchine and Kweyu tests, the 12-year period had run by 2007, well before the sub-division, so the plaintiff's overriding interest under Section 30(f) of the repealed Registered Land Act had crystalised.
Whether the 2nd defendant obtained a valid title to the whole of parcel 283 and holds 4.0 acres in trust for the plaintiff
No valid title to the whole parcel. The 2nd defendant bought only 4.0 acres but fraudulently had the whole 10.8 acres registered in his name; a constructive trust is imposed and he holds 4.0 acres in trust for the plaintiff.
The 2nd defendant produced no sale agreement or transfer forms for the whole parcel, and admitted in cross-examination that the 1st defendant sold him 4 acres. The court found he took advantage of the 1st defendant's absence in Uganda to transfer the entire parcel to himself, later transferring part to the 3rd defendant. The acquisition being fraudulent, the court invoked a constructive trust to protect the plaintiff's interest.
Whether orders could be made fixing boundaries or affecting parcel 736
No. The suit was not about boundary fixing and parcel 736 and its proprietor were no longer before the court after the res judicata ruling; making such orders would affect a non-party's land and reopen decided matters.
The surveyor's report suggested a fresh mutation of the original parcel 283, but the court declined: the claim against the 3rd defendant had been struck out as res judicata following consent orders in Bungoma ELC Case No 47 of 2012, and it would be improper to make orders affecting land whose registered proprietor is not a party.
Legal principles established
#- A claimant to land by adverse possession must prove exclusive, open possession as of right without interruption for 12 years, either after dispossessing the owner or after discontinuation of possession by the owner; adverse possession can be acquired for part of land and change of ownership does not interrupt it.
- Adverse possession must be without force, without secrecy/stealth and without permission (nec vi nec clam nec precario); continued hostile, actual, open, uninterrupted, notorious, exclusive and continuous possession for 12 years confers an indefeasible title.
- A fraudulently acquired title yields no interest; a constructive trust may be imposed against one who has acquired property by wrongdoing, and the only way to interrupt adverse possession is by filing a suit.
Court orders
#- 1.A declaration that the plaintiff has acquired a portion of land measuring 4.0 acres out of the land parcel NO SOUTH MALAKISI/SOUTH NAMWELA/737 both by way of adverse possession and a constructive trust.
- 2.The title to the land parcel NO SOUTH MALAKISI/SOUTH NAMWELA/737 is hereby cancelled and the Land Registrar Bungoma shall amend the register accordingly.
- 3.The Land Registrar and County Surveyor Bungoma shall forthwith sub-divide the land parcel NO SOUTH MALAKISI/SOUTH NAMWELA/737 to hive off 4.0 acres to be registered in the names of the plaintiff and the balance in the names of the 2nd defendant, with each issued their respective titles.
- 4.The 2nd defendant shall meet the plaintiff's costs of the suit.
- 5.The suit against the 1st defendant is dismissed.
- 6.The plaintiff shall meet the 1st defendant's costs of the suit.
- Jurisdiction invoked
- Original jurisdiction under Section 38(1) of the Limitation of Actions Act (claim for registration as proprietor by adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Barasa Mukoleli v David Lusweti Wasike & 2 others [2021] KEELC 115 (KLR)", Case Analysis (2021). Originating Summons dated 13th November 2018 (Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/115/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.