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ELCDismissedELC Case No. 134 of 2014· [2021] KEELC 2466 (KLR)

Juma Kulundu Mulisya v Sofia Nasiche Wesonga [2021] KEELC 2466 (KLR)

Environment and Land Court
27 July 2021
NMN. A. Matheka
2,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a 48-year adverse possession claim because permission to use the land defeats ownership claims.

What this practically means

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Executive summary

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The plaintiff sued for a declaration that he had acquired 2 acres out of land parcel South Wanga/Lureko/449 by adverse possession, alleging he purchased the portion from the deceased first registered proprietor, Wesonga Wanzala, in 1973, and thereafter occupied and cultivated sugarcane on it. He sought subdivision, registration of a new title in his name, an order compelling the defendant to transfer the land, and an injunction. The defendant, administrator of the deceased's estate, denied any sale, contending the plaintiff was only a licensee whose permission had expired, evidenced by a family meeting of 16th February 2012, and that the plaintiff had ceased occupation after his last sugarcane contract. The court outlined the Land Registration Act's protections for registered title under sections 24(a) and 26(1) and the adverse possession principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, requiring possession nec vi, nec clam, nec precario for the statutory 12-year period, with the owner dispossessed or having discontinued possession. The court found the plaintiff's occupation permissive rather than adverse, noted his failure to pursue transfer of title since 1973, and that his occupation and sugarcane contracts had ended. The plaintiff failed to establish his case on a balance of probabilities. The suit was dismissed with costs to the defendant on 27th July 2021.

Key legal issues

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01

Whether the plaintiff acquired title to 2 acres by adverse possession

Holding

The claim fails because the plaintiff's occupation was permissive, not adverse

Reasoning

The court applied the Wambugu v Njuguna and Kimani Ruchire principles requiring proof of dispossession or discontinuance for 12 years, and possession that is nec vi, nec clam, nec precario. The defendant's evidence of a 2012 family meeting asking the plaintiff to stop using the land, the expiry of sugarcane contracts, and the plaintiff's failure to pursue transfer since 1973 led the court to conclude the plaintiff was a licensee whose occupation was permissive and had ceased, defeating the claim.

p. 3
02

Whether the defendant's registered title could be challenged by the plaintiff's claim

Holding

Registered title is prima facie absolute and indefeasible unless procured by fraud or corrupt scheme

Reasoning

The court relied on sections 24(a) and 26(1) of the Land Registration Act, as explained in Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna, holding that title can only be impugned on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme. The plaintiff did not establish such grounds; his remedy, if any, lay in proving adverse possession, which he failed to do.

p. 3

Legal principles established

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  • A registered proprietor's title is prima facie absolute and indefeasible, challengeable only on fraud, misrepresentation, illegality, unprocedural acquisition or corruption
  • To acquire title by adverse possession, the claimant must prove dispossession of the owner or discontinuance of the owner's possession for the statutory period of 12 years
  • Where a claimant bought land and pleads adverse possession in the alternative, possession becomes adverse after payment of the last instalment of the purchase price
  • Adverse possession must be nec vi, nec clam, nec precario - without force, secrecy or permission

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Act, Chapter 22Sections 7, 17 and 38
  • Land Act 2012Section 7(d)

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
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for adverse possession to land (Limitation of Actions Act, Cap 22)

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, "Juma Kulundu Mulisya v Sofia Nasiche Wesonga [2021] KEELC 2466 (KLR)", Case Analysis (2021). ELC Case No. 134 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2466/eng@2021-07-21

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