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ELCDismissed· [2021] KEELC 1897 (KLR)

Timothy Omanjo & 9 others v John Owiti Odukado & 3 others [2021] KEELC 1897 (KLR)

Environment and Land Court
28 September 2021
3,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Landowners who occupy land openly and peacefully for over 12 years can defeat even a registered title holder's eviction claim in Kenya.

What this practically means

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Executive summary

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The plaintiffs, registered on 20th February 2014 as proprietors of LR No. Kanyamkago/Kawere I/4279 (approximately 10 hectares, a partition of Kanyamkago/Kawere I/215), sued the defendants seeking a declaration of ownership, eviction, a permanent injunction, and an order for exhumation of the first original defendant's body buried on the land, alleging trespass from early 2014. The defendants denied the claim, pleaded overriding interests under section 28 of the Land Registration Act, and counterclaimed for a declaration that the plaintiffs' right to recover the land was barred under the Limitation of Actions Act, asserting open, peaceful and continuous occupation since 23rd November 1974, together with orders registering them as joint proprietors. The court framed three issues: proprietorship, trespass versus adverse possession, and proof to the requisite standard. It found the plaintiffs were duly registered proprietors, but that their rights were subject to overriding interests. PW1's own cross-examination conceded the defendants built and cultivated openly and that the first defendant erected his homestead in 1974. The court held the defendants had acquired title by adverse possession, being overriding interests under sections 25(b) and 28(h) of the LRA, and were therefore not trespassers. It also held a counterclaim was a permissible vehicle for an adverse possession claim. The plaintiffs' suit was dismissed with costs to the defendants, and judgment entered for the defendants on the counterclaim as sought. Delivered at Homa Bay on 28th September 2021 by G M A Ongondo, Judge.

Key legal issues

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01

Whether the plaintiffs are the proprietors of the suit land

Holding

Yes - plaintiffs proved registration as proprietors, but their rights were subject to overriding interests

Reasoning

The plaintiffs produced the title deed, green card and official search (PExhibits 1 to 3) showing registration on 20th February 2014 following partition and transfer by Deceased-2. The court applied sections 24, 25, 26 and 30(1) of the Land Registration Act holding the certificate of title conclusive evidence of proprietorship absent fraud, misrepresentation or illegal or corrupt acquisition. However, proprietorship rights are subject to section 28 overriding interests.

p. 4
02

Whether the defendants are trespassers or hold the suit land by adverse possession

Holding

The defendants have acquired overriding interests by adverse possession since 1974 and are not trespassers

Reasoning

It was common ground that the defendants had erected homesteads and cultivated the land openly and peacefully since 1974 - PW1 himself conceded in cross-examination that the 1st defendant erected his homestead in 1974 and that the defendants build and cultivate openly. Possession exceeding 12 years extinguished the proprietor's title, and such rights are overriding interests under sections 25(b) and 28(h) of the LRA notwithstanding registration.

p. 5
03

Whether an adverse possession claim may be asserted by counterclaim rather than originating summons

Holding

Yes - a counterclaim is a permissible procedure for asserting adverse possession, tailored to the just and expeditious determination of disputes

Reasoning

While the established procedure is by originating summons under sections 7, 13, 37 and 38 of the Limitation of Actions Act, the court held that asserting adverse possession by way of counterclaim met the ends of justice under sections 3 and 19(1) of the Environment and Land Court Act, sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Articles 48 and 159(2) of the Constitution, without prejudice to the plaintiffs.

p. 4
04

Whether each party proved its claim to the requisite standard

Holding

Plaintiffs failed on a balance of probabilities; defendants proved their counterclaim

Reasoning

The plaintiffs failed to plead particulars of trespass and their own evidence established the defendants' long occupation predating registration. Conversely the defendants demonstrated open, peaceful and uninterrupted possession from 1974, discharging their burden and entitling them to the declaration and registration orders sought in the counterclaim.

p. 5

Legal principles established

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  • Adverse possession rights are overriding interests under section 28(h) of the Land Registration Act and bind a registered proprietor
  • Ingredients of adverse possession are open, peaceful entry without permission continued for an uninterrupted period in excess of 12 years
  • A registered proprietor's title is conclusive subject to the exceptions in section 26 of the Land Registration Act

Court orders

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  1. 1.The plaintiffs' claim mounted by way of plaint dated 15th September 2014, amended on 27th February 2018 and further amended on 4th February 2019, be and is hereby dismissed with costs to the defendants
  2. 2.Judgment is hereby entered for the defendants against the plaintiffs in terms of the counter claim dated 31st October 2019 and duly filed on even date and as set out in paragraph 14 (a) to (c) hereinabove

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 6(3), 48, 159(2)(b), (d) and (e)
  • Land Registration ActSections 2, 24, 25, 26, 26(1)(a) and (b), 28, 28(h), 30(1), 35, 36(1), 37(1)
  • Land ActSections 152A and 152A(1)(i)
  • Evidence Act, Chapter 80 Laws of KenyaSections 107 and 108
  • Limitation of Actions Act, Chapter 22 Laws of KenyaSections 7, 13, 37 and 38
  • Trespass ActSection 3
  • Environment and Land Court Act, 2015Sections 3 and 19(1)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B, 3 and 3A

Cases cited (15)

  • Gladys Wanjiru Ngacha =vs= Treresa Chepsaat & 4 others
    (2013) eKLR
  • Moses Parantai and Peris Wanjiku Mukuru (suing as legal representatives of the estate of Sospeter Mukuru Mbeere-Deceased) =vs= Stephen Njoroge Macharia
    (2020) eKLR
  • Charles Ajwang Abeti (suing as the legal representative of Abeti Atinda-Deceased) =vs= Charles Ochoro Rabach
    (2019) eKLR
  • Kuria Kiarie & 2 others =vs= Sammy Magera
    (2018) eKLR
  • Great Lakes Transport Company (U) Ltd =vs= J. Kenya Revenue Authority
    (2009) KLR 720
  • Munyu Maina =vs= Hiram Githiha Maina
    (2013) eKLR
  • Salim =vs= Boyd
    (1971) EA 550
  • Gulam Mariam Noordin =vs= Julius Charo Karisa
    (2015) eKLR
  • Re Giles (2)
    (1890) 43 ChD 391
  • Kibutiri =vs= Kibutiri
    (1983) eKLR
  • Boyes =vs= Gathure
    (1969) EA 385
  • Bayete Company Ltd =vs= Kosgey
    (1998) LLR 813
  • Wanje =vs= Saikwa (No.2)
    (1984) KLR 284
  • Elijah O.L Opar =vs= Tobias Odhiambo Abach
    (2019) KLR
  • Titus Ong'ang'a Nyachieo =vs= Martin Okioma Nyauma and 3 others
    (2017)
Jurisdiction invoked
Articles 6(3) and 48 of the Constitution of Kenya, 2010; Environment and Land Court Act, 2015

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, "Timothy Omanjo & 9 others v John Owiti Odukado & 3 others [2021] KEELC 1897 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1897/eng@2021-09-28

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