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ELCPartially AllowedOriginating Summons dated 4th January 2018· [2021] KEELC 2494 (KLR)

Dismas Otella Osikoyo & 2 others v Thomas Barasa Kimanayi [2021] KEELC 2494 (KLR)

Environment and Land Court
19 July 2021
BOBoaz N. Olao
3,771 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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After 40 years of open farming and occupation, three families won ownership of 7 acres in Bungoma through adverse possession, despite the owner's recent title transfer.

What this practically means

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Executive summary

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The three plaintiffs brought an Originating Summons dated 4th January 2018 against the defendant claiming to have become entitled by adverse possession to 7 acres out of land parcel WEST BUKUSU/NORTH MYANGA/386, now sub-divided into parcels 3168 and 3169. Their case was that the 1st plaintiff purchased the 7 acres from the defendant's late father, Kimanayi Marumbu, by a sale agreement dated 17th June 1977 and took possession; he later sold 2 acres to the 2nd plaintiff and exchanged 4 acres with the 3rd plaintiff, all of whom have occupied, farmed and built on their portions openly and without interruption. The defendant denied the sale, attacked the agreement for want of Land Control Board consent, asserted transmission of the land through succession and denied the plaintiffs' possession. The court, applying the classic requirements of adverse possession (nec vi, nec clam, nec precario) and authorities including Kasuve v Mwaani and Githu v Ndeete, found the plaintiffs' occupation proved: the defendant conceded a burial on the land, never evicted the plaintiffs, and only sought to reclaim possession in February 2017 - long after the 12-year period had run. The court held that lack of Land Control Board consent is immaterial to a Section 38(1) claim and that transfer and sub-division did not interrupt adverse possession. Judgment was entered for the plaintiffs: their titles to the respective portions crystallised, the defendant to execute transfers within 30 days (failing which the Deputy Registrar to do so), a permanent injunction issued, and costs awarded to the plaintiffs. The judgment expressly does not affect parcel 3169 registered in the name of Failosi W. Simiyu, a non-party.

Key legal issues

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01

Whether the plaintiffs proved adverse possession of the 7 acres

Holding

Yes - their occupation was open, peaceful, exclusive, continuous and uninterrupted for well over 12 years with the owner's knowledge, so the defendant's title was extinguished and he became a mere trustee

Reasoning

The court found the 1st plaintiff took possession of 7 acres in 1977 under the sale agreement, later passing 2 acres to the 2nd plaintiff and 4 acres to the 3rd plaintiff, who resided, farmed and buried a brother on the land. The defendant conceded the plaintiffs were never evicted and only attempted entry on 10th February 2017, some 40 years later, which was too late. The adverse possession had crystallised.

p. 5
02

Whether want of Land Control Board consent defeats the claim

Holding

No - the claim is not brought to enforce the sale agreement but under Section 38(1) of the Limitation of Actions Act, for which consent is unnecessary

Reasoning

The defendant attacked the 1977 agreement for lack of Land Control Board consent. The court held the plaintiffs were not suing on the agreement; it merely explained how possession was entered. Citing Gatimu Kinguru v Muya Gathangi, consent is not required where a party pursues rights under Section 38(1) of the Limitation of Actions Act.

p. 4

Legal principles established

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  • A claimant in adverse possession need not obtain Land Control Board consent, since the claim is not founded on the sale agreement
  • Once 12 years of adverse possession have crystallised, a subsequent transfer or sub-division of the land does not interrupt the adverse possession
  • To interrupt adverse possession before the 12 years expire, the registered proprietor must file suit against the possessor

Court orders

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  1. 1.Declaration that the plaintiffs acquired by adverse possession their respective portions (1st plaintiff - 1 acre, 2nd plaintiff - 2 acres, 3rd plaintiff - 4 acres) out of land parcel NO WEST BUKUSU/NORTH MYANGA/3168
  2. 2.Declaration that the defendant's right to the 7 acres out of parcel NO WEST BUKUSU/NORTH MYANGA/3168 has been extinguished by operation of law
  3. 3.The defendant to execute within 30 days all relevant documents to transfer the respective portions to the plaintiffs
  4. 4.In default, the Deputy Registrar at liberty to execute the transfer documents on behalf of the defendant
  5. 5.Permanent injunction restraining the defendant, his agents and servants from interfering with the plaintiffs' portions to be curved out of parcel NO WEST BUKUSU/NORTH MYANGA/3168
  6. 6.The defendant to meet the plaintiffs' costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 7
  • Registered Land Act (repealed)Section 30(f)
  • Land Registration Act 2012Section 28(h)
  • Land Act 2012Section 7(d)
  • Constitution of Kenya 2010Articles 40 and 50(1)

Cases cited (6)

  • KIMANI RUCHINE & ANOTHER v SWIFT RUTHERFORD & COMPANY LTD
    1980 KLR 10
  • KASUVE v MWAANI INVESTMENTS LTD & OTHERS
    2004 1 KLR 184
  • ROBERT SHUME & OTHERS v SAMSON KALAMA
    2015 eKLR
  • KWEYU v OMOTO
    1990 KLR 790
  • GATIMU KINGURU v MUYA GATHANGI
    1976 KLR 253
  • GITHU v NDEETE
    1984 KLR 776
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (Cap 22) - claim for registration as proprietor by 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, "Dismas Otella Osikoyo & 2 others v Thomas Barasa Kimanayi [2021] KEELC 2494 (KLR)", Case Analysis (2021). Originating Summons dated 4th January 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2494/eng@2021-07-19

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