Terah Joram v Nahashon Daudi Kisiero & 12 others [2021] KEELC 252 (KLR)
The bottom line
#A Bungoma court ruled that people who bought land, occupied it openly for over 12 years, now own it — even without Letters of Administration.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of defendants claiming through deceased purchasers
The plea of lack of locus standi fails because the defendants claim as persons in occupation and possession, not merely as personal representatives
Although some defendants lacked Grants of Letters of Administration for their deceased kin's estates, they pleaded and proved occupation and possession of the portions claimed. Their direct interest in the suit land suffices for standing; the objection was dismissed.
Whether the defendants were trespassers liable to eviction
No; entry was pursuant to sale agreements freely executed by the plaintiff, so the eviction suit was dismissed
There was a trove of sale agreements and affidavits showing the plaintiff sold portions to the defendants' kin. The plaintiff's denial was disbelieved; he did not call his daughter who assisted him, some agreements were witnessed by his own wife, and he delayed about 20 years before complaining. The entry was therefore lawful.
Whether the defendants acquired the portions they occupy by adverse possession
Yes, for the 1st–7th, 10th, 12th and 13th defendants, whose occupation was open, exclusive, peaceful and uninterrupted for over 12 years with the plaintiff's knowledge
Applying Kasuve v Mwaani, Kimani Ruchine, Kweyu v Omuto and Public Trustee v Wanduru, the court found occupation pursuant to purchase, open and undisturbed. The plaintiff took no effective entry or legal action to interrupt possession; the 1999 Tribunal claim by the purchasers did not interrupt it, and the first suit by the plaintiff came too late.
Applicability of the Land Control Act to adverse possession claims
Land Control Board consent is irrelevant to adverse possession; the provisions of the Land Control Act are inapplicable
The defendants sought orders in adverse possession, not enforcement of sale agreements. Following Public Trustee v Wanduru and Gatimu Kinguru, acquisition of title by adverse possession occurs by operation of law and is neither a disposal nor a dealing requiring consent under Section 6(1).
Legal principles established
#- Lack of Letters of Administration does not bar a defendant in occupation and possession of land from prosecuting a claim to it
- A purchaser in possession who has paid the purchase price can acquire title by adverse possession
- Acquisition of title by adverse possession is neither a disposal nor a dealing in land requiring Land Control Board consent
- A registered proprietor's title is subject to overriding interests including rights acquired under the limitation of actions law
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 10th, 12th and 13th defendants
- 2.The Counter-Claims by the 8th, 9th and 11th defendants are dismissed with costs to the plaintiff
- 3.Judgment for the 1st, 2nd, 3rd and 4th defendants: 13½ acres acquired by adverse possession, to be registered in the name of the 1st defendant David Chemwoo Arap Mein to hold in trust for the family of the late Daudi Mein Kisiero
- 4.Judgment for the 5th and 6th defendants: 2 acres acquired by adverse possession, to be registered in the name of the 6th defendant Simeon Changwani Ndiema to hold in trust for the family of the late Bon Cherop Ndiema
- 5.Judgment for the 7th defendant: 5 acres acquired by adverse possession, to be registered in the name of Ann Chemutai Kaibei to hold in trust for the family of the late Charles Kaibei Tendet
- 6.Judgment for the 10th defendant: 3 acres and a plot measuring 132 feet by 38 feet acquired by adverse possession, to be registered in her name to hold in trust for the family of the late Benson Kimawa Kimobo
- 7.Judgment for the 12th defendant: 2 acres acquired by adverse possession, to be registered in his name
- 8.Judgment for the 13th defendant: 4 acres acquired by adverse possession, to be registered in the name of the Cabinet Secretary Treasury reserved for Bugaa A.I.C Primary School
- 9.The plaintiff to execute within 30 days all relevant documents to facilitate registration; in default, the Deputy Registrar at liberty to execute on his behalf
- 10.The Land Registrar and Surveyor Bungoma to rectify the register for parcel ELGON/KAPSOKWONY/478 accordingly
- 11.The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 10th, 12th and 13th defendants entitled to the costs of their Counter-Claims
- Jurisdiction invoked
- Original civil jurisdiction of the High Court in a land claim; counter-claim under Section 38(1) of the Limitation of Actions Act (Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Terah Joram v Nahashon Daudi Kisiero & 12 others [2021] KEELC 252 (KLR)", Case Analysis (2021). Bungoma High Court Civil Suit (ELC) – plaint dated 13th March 2013 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/252/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.