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ELCDismissedELC Case No. 89 of 2019· [2021] KEELC 2465 (KLR)

Andrew Oponyo Mulama & another v Samuel Omulama Amakanji & another [2021] KEELC 2465 (KLR)

Environment and Land Court
27 July 2021
NMN.A. Matheka
1,885 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 stepbrothers' claim to family land by adverse possession, holding they were mere licensees without exclusive possession.

What this practically means

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Executive summary

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The plaintiffs, Andrew Oponyo Mulama and Edward Makanji Mulama, sued Samuel Omulama Amakanji and Vincent Anyanga claiming that they had acquired L.R. Kisa/Emasaitsi/83 (approximately 2.0 acres) by adverse possession and seeking a declaration that the defendants' rights over the parcel were extinguished after 12 years, with directions to the County Land Registrar to effect corresponding register entries. The 1st plaintiff testified that he and the 2nd plaintiff had lived on the land with their families since 1985, that the 1st defendant, their stepbrother, never lived there, and that the 1st defendant later sold the land to the 2nd defendant who fenced it. The 1st defendant, an only child of his parents, testified that his father transferred the land to him in 1978; that he only came to the land in April 2014 to bury his mother, meeting determined resistance from the plaintiffs; that a family meeting on 17th April 2019 agreed the land be shared equally; and that he thereafter sold his one-half share to the 2nd defendant. He withdrew his counter-claim for eviction. 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 1st plaintiff's evidence inconsistent and unreliable, holding that the plaintiffs were licensees on land that was their stepbrother's inheritance and had failed to prove exclusive, continuous and uninterrupted 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 acquired title to L.R. Kisa/Emasaitsi/83 by adverse possession

Holding

The claim failed; the plaintiffs did not prove exclusive, continuous and uninterrupted possession for the statutory 12-year period and were in any event licensees on land that was their stepbrother's inheritance

Reasoning

The court applied the Wambugu v Njuguna principles and the Kimani Ruchire test of nec vi, nec clam, nec precario. The 1st plaintiff's evidence was found inconsistent and unreliable: he signed minutes of a family meeting on 17th April 2019 agreeing the land belonged to the 1st defendant and to share it equally, then changed his mind. The plaintiffs had lived in their mother's homestead about 2 km away until relocating around 2013, and their possession was interrupted, among other things, by the 2014 burial dispute.

p. 3
02

Whether the 1st defendant's title, subsequently sold to the 2nd defendant, is indefeasible

Holding

The registered proprietors hold good title; no basis was established to impugn it under section 26(1) of the Land Registration Act

Reasoning

The court invoked sections 24(a) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and render the certificate of title prima facie evidence of indefeasible ownership, subject only to challenge for fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such grounds were established against the 1st or 2nd defendant.

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 grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, the claimant must prove possession as of right, nec vi, nec clam, nec precario, that is continuous and uninterrupted for the statutory period of 12 years
  • A claimant's possession must be continuous and not broken; the title holder must have been dispossessed or discontinued possession for the statutory period

Court orders

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  1. 1.The plaintiffs' suit is dismissed with no orders as to costs
  2. 2.It is so ordered

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
Environment and Land Court jurisdiction (original claim for declaration of adverse possession over L.R. Kisa/Emasaitsi/83)

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, "Andrew Oponyo Mulama & another v Samuel Omulama Amakanji & another [2021] KEELC 2465 (KLR)", Case Analysis (2021). ELC Case No. 89 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2465/eng@2021-07-27

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