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ELCDismissedELC Case No. 110 of 2019· [2021] KEELC 2452 (KLR)

Saulo Gabriel Tsalia & another v Samson Lutatwa Munanga & another (Being Sued as Administrators of the Estate of the Late Musa Munanga (Deceased) [2021] KEELC 2452 (KLR)

Environment and Land Court
27 July 2021
NMN.A. Matheka
1,973 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega dismissed a family's claim to 10 acres, ruling they failed to prove 12 years of open, peaceful and uninterrupted possession.

What this practically means

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Executive summary

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The plaintiffs, sons of the late Tsalia Lutatwa, claimed a 10-acre portion of land parcel Butsotso/Indangalasia/349 by adverse possession against the defendants, administrators of the estate of the late Musa Munanga. They asserted that following a 1957 judgment in the Divisional Court at Lurambi (Land Case 48 of 1957), the original 42.5-acre parcel was subdivided, portion 349 registered in Musa Munanga's name and portion 350 in their father's name, and that from 1987 they occupied a 10-acre portion of 349 said to be due to their father, openly and peacefully for over 30 years. They sought a declaration of ownership by adverse possession, an order that the administrators transfer the portion to them, and a declaration that the defendants hold it in trust. The defendants maintained the 1957 dispute was settled, that the plaintiffs live on parcel 350, and that a prior ELC originating summons (Kakamega ELC Case No. 112 of 2009) over the same parcel was dismissed for want of prosecution on 7th July 2015, making the present suit an abuse of process. The court applied sections 24(a) and 26(1) of the Land Registration Act on indefeasibility of title and the adverse possession principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords. It found the plaintiffs' occupation had never been peaceful or uninterrupted since 1957, that some cane-cultivation permits related to a different parcel, and that they failed to prove exclusive, continuous and open possession for over 12 years. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the plaintiffs proved adverse possession of the claimed 10 acres

Holding

They did not; their possession was neither exclusive, continuous nor uninterrupted for the requisite 12 years

Reasoning

The court set out the principles from Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords: the claimant must prove open, peaceful and continuous possession inconsistent with the owner's title for at least 12 years. Here disputes over the land have been continuous since 1957, the plaintiffs themselves admitted through PW2 and PW3 that they have never lived in peace, and some cultivation permits produced related to a different parcel. Possession was therefore interrupted and not adverse.

p. 3
02

The indefeasibility of the registered title under the Land Registration Act

Holding

The registered proprietors hold an absolute and indefeasible title, subject only to challenge on fraud, misrepresentation or illegal acquisition

Reasoning

Applying sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra case, the court held that title is extremely protective and only two grounds permit challenge. The suit land is registered in the name of the deceased Musa Munanga, whose estate the defendants administer, and the plaintiffs' adverse possession claim did not displace that title.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, possession must be nec vi, nec clam, nec precario, continuous, uninterrupted and open, with the owner's knowledge, for the statutory period of 12 years

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actprovisions on adverse possession

Cases cited (5)

  • Elijah Makeri Nyangw'ra –vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi vs Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu vs Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act in a claim for 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, "Saulo Gabriel Tsalia & another v Samson Lutatwa Munanga & another (Being Sued as Administrators of the Estate of the Late Musa Munanga (Deceased) [2021] KEELC 2452 (KLR)", Case Analysis (2021). ELC Case No. 110 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2452/eng@2021-07-27

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