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ELCAllowedEnvironment and Land Court Case No. 4 of 2019 (O.S)· [2021] KEELC 2272 (KLR)

Pamela Dindi Ndubi v Javan Richard Ndubi & another [2021] KEELC 2272 (KLR)

High Court of Kenya at Busia, Environment and Land Court
28 July 2021
AOA. Omollo
2,463 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Busia court gave a woman ownership of land she openly lived on for 18 years, ruling the new buyer who had seen her there couldn't evict her.

What this practically means

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Executive summary

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The Applicant brought an Originating Summons claiming that she had acquired L.R No. BUKHAYO/KISOKO/6685 by adverse possession, seeking a declaration of title, removal of the Respondents' names from the register and registration of herself as proprietor, plus costs. The 1st Respondent asserted the land had been gifted to him by his grandfather and sold to the 2nd Respondent in 2016; the 2nd Respondent claimed to be a registered innocent purchaser for value and raised res judicata citing Busia H.C ELC No. 157 of 2016, which the Applicant had withdrawn. At trial the Applicant and her witness testified she had occupied the land since June 1996 (the witness said 1982), built semi-permanent houses, and was never evicted by her father, the original proprietor, who died in 2014. The 1st Respondent admitted the Applicant still lives on the parcel; the 2nd Respondent admitted he found her in occupation before purchasing. Framing three issues - adverse possession, the 2nd Respondent's counter-claim for eviction and injunction, and costs - the court applied Section 7 of the Limitation of Actions Act and the principles in Ruth Wangari Kanyagia and Kamataka Board of Wakf, holding that eighteen years of open, continuous and peaceful occupation known to both Respondents established adverse possession, and that the 2nd Respondent's notice of the occupation defeated the innocent purchaser defence, his remedy lying against the 1st Respondent. Judgment was entered for the Applicant: transfer of the property, vacant possession within 60 days, eviction in default, a permanent injunction, and costs to the Applicant.

Key legal issues

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01

Whether the Applicant proved adverse possession over L.R No. BUKHAYO/KISOKO/6685

Holding

Yes; she occupied the land peacefully, openly and continuously from June 1996, an uninterrupted period of 18 years by the time of the original proprietor's death in 2014

Reasoning

Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years. PW1 and PW2 testified to actual occupation since 1996, uncontradicted by the defence, including construction of semi-permanent houses. DW1 admitted the Applicant still lives on the parcel and that the original proprietor never evicted her. DW2 found her in occupation before purchase. Her possession was thus nec vi, nec clam, nec precario and hostile to the title.

p. 3
02

Whether the 2nd Respondent is entitled to eviction and permanent injunction

Holding

No; the Applicant's adverse possession prevails and the 2nd Respondent's remedy lies against the 1st Respondent

Reasoning

The 2nd Respondent visited the land before purchase, met the Applicant and saw her houses, so he bought with notice of her occupation. The innocent purchaser defence therefore fails. His recourse is a claim for damages against the vendor (1st Respondent) or acceptance of the family's offer of an alternative parcel discussed at the meeting of 21 October 2018.

p. 3

Legal principles established

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  • Possession that is open, actual, continuous and uninterrupted for the statutory period of twelve years, with the knowledge of the proprietor, ripens into title by adverse possession
  • A purchaser who buys land while aware of the presence of a person in occupation cannot rely on the defence of innocent purchaser for value without notice

Court orders

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  1. 1.The Applicant's Originating Summons succeeds
  2. 2.The 2nd Respondent shall execute transfer documents for the property in favour of the Applicant within thirty days failure to which the Deputy Registrar shall execute the same to facilitate registration of the Property in the name of the Applicant
  3. 3.The 2nd Respondent to give vacant possession of any portion L.R No. BUKHAYO/KISOKO/6685 to the Applicant within 60 days from the date of judgement
  4. 4.In default, eviction shall issue
  5. 5.Once evicted, an order of permanent injunction restraining the Respondents, their agents, servants, employees and all persons claiming through them from interfering with the Applicant's use of L.R No. BUKHAYO/KISOKO/6685
  6. 6.Costs of the suit awarded to the Applicant

Authorities

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Legislation

  • Limitation of Actions ActSection 7

Cases cited (2)

  • Ruth Wangari Kanyagia –vs- Josephine Muthoni Kinyanjui
    [2017] eKLR
  • Kamataka Board of Wakf –vs- Government of India & Others
    [2004] 10 SCC 779
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land registration and Limitation of Actions Act, CAP 22 Laws of Kenya (adverse possession claim by Originating Summons)

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, "Pamela Dindi Ndubi v Javan Richard Ndubi & another [2021] KEELC 2272 (KLR)", Case Analysis (2021). Environment and Land Court Case No. 4 of 2019 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2272/eng@2021-07-28

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