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ELCPartially AllowedBungoma ELC Originating Summons (amended, dated 5th February 2020)· [2021] KEELC 2271 (KLR)

Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2021] KEELC 2271 (KLR)

Environment and Land Court
28 July 2021
5,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court awarded a man land he occupied for over 30 years, even though his original 1980 purchase agreement was legally worthless.

What this practically means

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Executive summary

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The plaintiff, by an amended Originating Summons, sought declarations that the defendants' interest in ¾ of an acre out of EAST BUKUSU/NORTH SANG'ALO/967 (now sub-divided into parcels 6572, 6573 and 6574) was extinguished by adverse possession, that he be registered as proprietor, and that the defendants honour the sale agreement dated 14th March 1980 between him and RASIA MTESO. He claimed to have taken possession on purchase in 1980, developing the land with trees, crops and building materials. Both defendants denied the purchase and occupation; the 1st defendant inherited the original parcel by transmission in 2003 and sub-divided it in 2014, while the 2nd defendant purchased and became registered proprietor of parcels 6573 and 6574 in 2014. The court held that the 1980 sale agreement conferred no title: it was unsigned and the seller was not the registered proprietor, being 'an intruder' who 'actually stole' the land. However, the agreement was the vehicle by which the plaintiff took possession. Relying on the Kanduyi Land Disputes Tribunal findings and testimony, the court found the plaintiff in open, peaceful, exclusive and uninterrupted occupation from 14th March 1980, with the 12-year period expiring on 15th March 1992, unaffected by subsequent changes of ownership. The claimed ¾ acre was located within parcels 6573 and 6574 registered in the 2nd defendant's name, whose transfer during the suit was held to have been done to frustrate the claim. The claim against the 1st defendant was dismissed; judgment was entered for the plaintiff against the 2nd defendant with an order for transfer within 30 days, a default provision for the Deputy Registrar to sign, a permanent injunction, and costs against the 2nd defendant.

Key legal issues

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01

Whether the 1980 sale agreement from a non-owner conferred any interest in the land

Holding

No - RASIA MTESO was not the registered proprietor on 14th March 1980; the agreement was unsigned and void, conferring no title on the plaintiff

Reasoning

The Green Card showed the parcel was first registered to Nabiswa Telewa Wekulo on 3rd March 1969. RASIA MTESO therefore had no interest she could transfer. Further, the agreement bore only names and no signatures, so there was no contract in law. The Court of Appeal's pronouncement that a thief acquires no transferable right was applied.

p. 3
02

Whether the plaintiff nonetheless proved adverse possession

Holding

Yes - the plaintiff took possession in 1980, planted trees and crops, placed bricks and sand in 1990, and was in open, peaceful, exclusive and uninterrupted occupation, with time expiring on 15th March 1992

Reasoning

The Tribunal proceedings corroborated the plaintiff's occupation: maize planted for 3 years, 1,221 trees, bricks and sand placed in 1990, and caretaking by Alfred Maina and Juliana Maina during his church transfers. Occupation need not be direct. No suit for eviction or re-entry was brought by the registered proprietor, so time ran uninterrupted from 14th March 1980.

p. 6
03

Against whom the adverse possession claim lies and which parcels contain the ¾ acre

Holding

The ¾ acre falls within parcels 6573 and 6574 registered in the 2nd defendant's name; the claim against the 1st defendant was dismissed

Reasoning

The trees uprooted by the 2nd defendant on 20th-21st October 2010 were on the parcels he owns; the two parcels total 0.32 Ha, matching the claimed ¾ acre (0.304 Ha). The 2nd defendant's transfer was effected in November 2014 during the proceedings and was held to have been done to frustrate the plaintiff's claim.

p. 7

Legal principles established

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  • A claimant seeking title by adverse possession must prove exclusive, open, peaceful and uninterrupted possession for 12 years, whether by dispossessing the owner or by the owner's discontinuation of possession
  • Possession under adverse possession need not be direct; leaving land in the care of an agent or caretaker still constitutes occupation and possession
  • Change of ownership of land for which time has started running under adverse possession does not interrupt the adverse possession; only re-entry or suit by the registered proprietor interrupts it
  • A seller without title transfers nothing; a thief or intruder acquires no transferable right in the property

Court orders

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  1. 1.The claim against the 1st defendant is dismissed with no orders as to costs
  2. 2.Judgment for the plaintiff against the 2nd defendant that the plaintiff has acquired by way of adverse possession ¾ of an acre out of land parcels EAST BUKUSU/NORTH SANG'ALO/6573 and 6574
  3. 3.The 2nd defendant to execute within 30 days all relevant documents to facilitate transfer of the ¾ acre to the plaintiff
  4. 4.In default, the Deputy Registrar of the Court to sign all relevant documents on behalf of the 2nd defendant
  5. 5.The defendants, their agents, servants or any other person acting through them are permanently restrained from interfering in any manner with the said ¾ acre
  6. 6.The 2nd defendant to meet the plaintiff's costs
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (Cap 22) - application to the High Court (ELC) for registration as proprietor by adverse possession

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, "Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2021] KEELC 2271 (KLR)", Case Analysis (2021). Bungoma ELC Originating Summons (amended, dated 5th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2271/eng@2021-07-28

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