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ELCAllowedOriginating Summons dated 15/11/2017 (ELC, Nakuru)· [2021] KEELC 508 (KLR)

Abraham Lucheli Luvonga (Suing as the administrator of the Estate of Bushasha Lucheri (Deceased) v Fred Okea & another [2021] KEELC 508 (KLR)

Environment and Land Court
8 December 2021
5,795 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, son and administrator of the estate of the late Bushasha Lucheri, filed an Originating Summons on 15 November 2017 seeking a declaration that his late father had acquired 2 acres of land comprised in Cherangany/Kapcherop/1700 by adverse possession and an order directing the County Land Registrar, Elgeyo Marakwet, to amend the register accordingly. His case was that the deceased bought the 2 acres in 1983 from the 1st defendant, who had bought from the 2nd defendant, and the family occupied the land openly and uninterruptedly until the deceased's death in 2009 and thereafter. The 1st defendant filed no response. The 2nd defendant, the registered proprietor, claimed the sale to the 1st defendant was rescinded after a refund of the purchase price in 1993, that Bushasha vacated in 1994, and that 12 years had not elapsed since his 2016 title. The court declined to decide whether an adverse possession claim can co-exist with a purchaser's claim, holding the contract evidence merely explained how the family came onto the land. It found no privity between the deceased and the 2nd defendant, so the refund and rescission between the 1st and 2nd defendants did not terminate the deceased's agreement; there was no credible evidence of dispossession, and reports to chiefs could not interrupt possession. Judgment was entered for the plaintiff with a declaration of adverse possession, an order for rectification of the register in favour of the Estate, and costs against the 2nd defendant alone.

Key legal issues

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01

Co-existence of adverse possession claim and purchaser's interest claim

Holding

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.

Reasoning

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.

p. 5
02

Whether adverse possession was established

Holding

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.

Reasoning

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.

p. 5
03

Effect of the refund and rescission between the 1st and 2nd defendants

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.A declaration that the late Bushasha Lucheri acquired 2 acres of land comprised in Cherangany/Kapcherop/1700 by way of adverse possession
  2. 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. 3.The 2nd defendant alone to bear the costs of the suit

Authorities

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Cases cited (5)

  • Samuel Miki Waweru vs Jane Njeri Richu
    CA NO 122 of 2001 (UR)
  • Wambo Vs Njuguna
    1983 KLR 172
  • Hyde Vs Pearce
    1982 ALLER 1029
  • M'Mbaoni M'Thaara vs James Mbaka
    2017 eKLR
  • Sisto Wambugu Vs Kamau Njuguna
    NBI Civil Appeal No 10 Of 1982
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "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.