Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2021] KEELC 2271 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1980 sale agreement from a non-owner conferred any interest in the land
No - RASIA MTESO was not the registered proprietor on 14th March 1980; the agreement was unsigned and void, conferring no title on the plaintiff
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.
Whether the plaintiff nonetheless proved adverse possession
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
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.
Against whom the adverse possession claim lies and which parcels contain the ¾ acre
The ¾ acre falls within parcels 6573 and 6574 registered in the 2nd defendant's name; the claim against the 1st defendant was dismissed
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.
Legal principles established
#- 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
#- 1.The claim against the 1st defendant is dismissed with no orders as to costs
- 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.The 2nd defendant to execute within 30 days all relevant documents to facilitate transfer of the ¾ acre to the plaintiff
- 4.In default, the Deputy Registrar of the Court to sign all relevant documents on behalf of the 2nd defendant
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.