Abraham Lucheli Luvonga (Suing as the administrator of the Estate of Bushasha Lucheri (Deceased) v Fred Okea & another [2021] KEELC 508 (KLR)
The bottom line
#A Kenyan court awarded a family land by adverse possession after nearly 40 years of occupation, ruling a private refund deal could not evict them.
What this practically means
#Executive summary
#Key legal issues
#Co-existence of adverse possession claim and purchaser's interest claim
The Originating Summons sought only declaratory relief for adverse possession; the contract evidence was relevant only to show how the family came onto the land, so the court need not decide whether the two claims can co-exist.
The court noted the Originating Summons sought only the declaration of adverse possession and a consequential registration order, with no claim under contract. The averments and evidence about the sale agreements merely explained how the plaintiff's family came to be on the land and that the 2nd defendant knew the manner of their possession. It therefore declined to delve into the merits of whether the two claims can co-exist, confining itself to whether the requisites of adverse possession were satisfied.
Whether adverse possession was established
Yes - the late Bushasha and thereafter his family were in open, uninterrupted and notorious possession from 1983, with no credible evidence of dispossession or interruption.
The 2nd defendant admitted selling to the 1st defendant, who sold to the plaintiff's father, who took exclusive possession. The alleged 1993 refund never involved the plaintiff's father and was never communicated to him; the 2nd defendant never re-took possession, built no structures, and his first recorded complaints date from 2016. Attempts to regain possession during the pendency of the suit were disregarded. Possession was quiet and notorious enough to attract the attention of local administrators.
Effect of the refund and rescission between the 1st and 2nd defendants
Since there was no privity of contract between the plaintiff's father and the 2nd defendant, the refund and repudiation between the 1st and 2nd defendants could not terminate the father's agreement with the 1st defendant, which required express repudiation that never occurred.
The court reasoned that the plaintiff's father was not involved in the alleged 1993 refund and was never informed of it; he continued residing on the land. The 2nd defendant's evidence that Bushasha left the land lacked credibility. Without privity between the father and the 2nd defendant, the rescission of the head agreement could not affect the father's rights under his own agreement with the 1st defendant.
Legal principles established
#- Where possession has begun under a sale between third parties, a refund and repudiation of the agreement between the vendor and intermediate purchaser does not terminate the occupier's possession absent privity of contract and express repudiation.
- Resort to non-court fora such as reports to the chief does not amount to interruption of an adverse possessor's possession.
Court orders
#- 1.A declaration that the late Bushasha Lucheri acquired 2 acres of land comprised in Cherangany/Kapcherop/1700 by way of adverse possession
- 2.An order directing that, if not already registered pursuant to the earlier decree, the County Land Registrar Elgeiyo Marakwet County shall cancel the registration of the 2nd defendant as proprietor of Cherangany/Kapcherop/1700 and amend the land register to have the same registered in the name of the Estate of the late Bushasha Lucheri and the title deed issued accordingly
- 3.The 2nd defendant alone to bear the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abraham Lucheli Luvonga (Suing as the administrator of the Estate of Bushasha Lucheri (Deceased) v Fred Okea & another [2021] KEELC 508 (KLR)", Case Analysis (2021). Originating Summons dated 15/11/2017 (ELC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/508/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.