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ELCDismissedOriginating Summons dated 8th June 2016· [2021] KEELC 310 (KLR)

Donald Omuyaku Okinami v Luanda Revival Worship Centre [2021] KEELC 310 (KLR)

Environment and Land Court
14 December 2021
2,546 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A man claiming land by long occupation lost his case because the church had retaken possession, ending his claim of uninterrupted adverse possession in Kenya.

What this practically means

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Executive summary

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This was an Originating Summons dated 8th June 2016 brought under Order 37 Rule 7(1) of the Civil Procedure Rules, 2010, in which the plaintiff sought to be registered as proprietor of 1.6 acres of land parcel W/BUNYORE/ESIANDUMBA/545 on the basis that he had been in open, peaceful and uninterrupted adverse possession for over 30 years, having been born on the land in 1954, resided, cultivated and buried kin thereon. He further alleged that the defendant, Luanda Revival Church, had fraudulently registered itself as proprietor. The defendant, through Bishop Norbetus Oyugi Akhombo, denied the plaintiff's occupation, asserting it bought the land from Hallon Okwaro in 2002, entered in 2008, and built a church thereon; it maintained the plaintiff occupied the neighbouring parcel 546. The court framed issues mirroring the questions on the face of the summons. Relying on Mtana Lewa v Kahindi Ngala Mwagandi, it held that adverse possession requires possession nec vi, nec clam, nec precario sustained over the limitation period. The plaintiff conceded in evidence and cross-examination that the defendant forcefully entered and took occupation in 2006 and that the land was now occupied by the defendant, which had prosecuted him over boundary interference and sued him for vacant possession - acts which interrupted any continuity of possession. The fraud allegation failed because it was neither specifically pleaded nor strictly proved, applying Kinyanjui Kamau v George Kamau and Ndolo v Ndolo. The suit was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff was in possession of the suit land and had developed and stayed thereon for over 30 years

Holding

No - the plaintiff conceded he had been out of possession since 2006 when the defendant forcibly entered and occupied the land

Reasoning

The plaintiff admitted in evidence and on cross-examination that the land was currently occupied by the defendant, which entered in 2006 and built a church house thereon. The defendant has occupied the suit land for over 13 years. Physical occupation, use and development are with the defendant, so the first question was answered in the negative and the foundational element of continuous possession failed.

p. 3
02

Whether the plaintiff had acquired title by adverse possession under the Limitation of Actions Act

Holding

No - even assuming past occupation, it was interrupted when the defendant asserted its rights, evicted him, had him prosecuted and sued him

Reasoning

The ingredients of adverse possession were not disputed: possession must be nec vi, nec clam, nec precario and run for the limitation period without interruption by the title owner. Here the defendant asserted title by forceful entry, a criminal charge against the plaintiff, and a civil suit for vacant possession. Such assertion and retaking of possession interrupted any continuity, so the plaintiff's occupation did not amount to adverse possession.

p. 3
03

Whether the defendant fraudulently registered itself as proprietor of the suit land

Holding

No - fraud was not specifically pleaded and no evidence was led to prove it to the required standard

Reasoning

Fraud must be specifically pleaded and strictly proved; the standard is higher than the balance of probabilities but lower than beyond reasonable doubt. The plaintiff conceded that the land had four previous registered owners before the defendant and produced no evidence of fraudulent registration. Drawing on Kinyanjui Kamau v George Kamau, the court held that it is not enough to simply infer fraud from the facts.

p. 3

Legal principles established

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  • Adverse possession requires possession that is nec vi, nec clam, nec precario - by force, secrecy or permission - and it accrues by the default or inaction of the title owner over the limitation period of twelve years
  • Allegations of fraud must be specifically pleaded and strictly proved to a standard higher than a balance of probabilities, though below proof beyond reasonable doubt
  • Occupation of land is interrupted where the registered proprietor asserts its rights and retakes possession, defeating an adverse possession claim

Court orders

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  1. 1.The plaintiff's suit commenced vide the originating summons dated 8th June 2016 is hereby dismissed
  2. 2.Costs of the suit shall be paid by the Plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 Rule 7(1)
  • Limitation of Actions Act (Cap 22)Sections 7, 17, 38, 77
  • Civil Procedure ActSection 27

Cases cited (6)

  • Maweu vs Liu Ranching and Farming Cooperative Society
    [1985] eKLR
  • Benjamin Murima & Others vs Gladys Njeri
    Court of Appeal No 213 of 1996
  • Francis Gicharu – vs- Peter Njoroge Mairu
    [2005] eKLR
  • Mtana Lewa –vs- Kahindi Ngala Mwagandi
    [2015] eKLR
  • Kinyanjui Kamau vs George Kamau
    [2015] eKLR
  • Ndolo vs Ndolo
    (2008) 1 KLR (G & F) 742
Jurisdiction invoked
Order 37 Rule 7(1) of the Civil Procedure Rules, 2010 read with the Limitation of Actions Act (Cap 22)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Donald Omuyaku Okinami v Luanda Revival Worship Centre [2021] KEELC 310 (KLR)", Case Analysis (2021). Originating Summons dated 8th June 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/310/eng@2021-12-14

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