Mary Ajiambo Nafula & another v George Wafula Tororo [2021] KEELC 1906 (KLR)
The bottom line
#A Busia court gave two families ownership of land they bought and farmed for over 12 years, even after someone else got the title.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants' occupation became adverse to the Respondent
Yes. The Applicants were in open, actual, continuous and uninterrupted possession of the half acre for more than twelve years from the 2006 sale, acquiring title by adverse possession.
The Applicants purchased the portion in 2006 for KShs.50,000 in a witnessed agreement at which the Respondent was present; they ploughed the land and planted trees, which the Respondent acknowledged. Continuous use does not require physical residence. The Respondent's 2017 registration did not interrupt possession, since rights under section 7 of the Limitation of Actions Act are overriding interests binding on a purchaser for value, and the Respondent, as a witness to the sale, was precluded from defeating the claim.
Whether the Respondent's acquisition of title in 2017 defeated the claim
No. Adverse possession rights already matured against his predecessor and are overriding interests; the Respondent takes subject to them.
Relying on Gitu v Ndeete and Douglas Mbugua Mungai v Harrison Munyi, the court held that where a person in possession is in the course of acquiring rights under section 7 of the Limitation of Actions Act, those rights are overriding interests by virtue of section 30(f) of the RLA, and a new registered proprietor, even a purchaser for value, cannot be in a better position than his predecessor in title.
Who bears the costs of the suit
The Respondent, having lost, was ordered to pay the costs.
The court exercised its ordinary discretion on costs, awarding them to the successful Applicants as part of the final orders.
Legal principles established
#- Continuous use of land for adverse possession does not necessarily mean physically living on the land; planting trees and ploughing suffices as continuous use.
- A claimant must prove peaceful, continuous and uninterrupted occupation for more than twelve years to establish adverse possession.
- Change of ownership does not interrupt adverse possession; rights accruing under section 7 of the Limitation of Actions Act are overriding interests binding on a new registered proprietor.
Court orders
#- 1.Declaration that the Applicants have acquired by way of adverse possession a portion of L.R. No Bukhayo/Mundika/12308 measuring half (½) an acre which is in their possession
- 2.The Respondent shall execute transfer documents for the half (½) acre portion to be curved from LR No. BUKHAYO/MUNDIKA/12308 in favour of the Applicants within thirty (30) days, failure to which the Deputy Registrar of the court shall execute the same to facilitate registration in the Applicants' name
- 3.An order of permanent injunction restraining the Respondent, his family, agents, servants, employees and all persons claiming through him from interfering with the Applicants' use of the half (½) acre comprised in L.R. No. BUKHAYO/MUNDIKA/12308
- 4.Costs of the suit awarded to the Applicants
- Jurisdiction invoked
- Original jurisdiction under Section 7 of the Limitation of Actions Act, CAP 22 Laws of Kenya (adverse possession claim by Originating Summons)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Ajiambo Nafula & another v George Wafula Tororo [2021] KEELC 1906 (KLR)", Case Analysis (2021). Originating Summons dated 25th March, 2019 (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1906/eng@2021-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.