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ELCDismissedELC Case No. 192 of 2017· [2021] KEELC 2501 (KLR)

Japheth Lijoodi v Clement Shikami & another [2021] KEELC 2501 (KLR)

Environment and Land Court
21 July 2021
1,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a land buyer's adverse possession claim because his occasional use of the land fell short of 12 years of continuous occupation.

What this practically means

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Executive summary

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The plaintiff, Japheth Lijoodi, claimed that he bought the land from the 1st defendant (now deceased) in 1992 and thereafter acquired title to Isukha/Shinyalu/1590 and 1591 by adverse possession, having allegedly been in open, continuous, peaceful possession for over 12 years before the 1st defendant subdivided the original parcel in 2009 and transferred it to the 2nd defendant. He sought a declaration of adverse possession, a declaration that the respondents held the land in trust for him, cancellation of the 2nd defendant's title and an order for transfer of the parcels to him, plus costs. The court outlined the applicable principles: registration under sections 24(a) and 26(1) of the Land Registration Act confers absolute and indefeasible title challengeable only on proven fraud, misrepresentation or illegal, unprocedural or corrupt acquisition, and adverse possession requires nec vi, nec clam, nec precario possession that is continuous and uninterrupted for at least 12 years. On the evidence, the plaintiff testified that he used the land only on and off, there was no house on it and no one was currently using it, whereas the 2nd defendant was in occupation and had put up a semi-permanent structure. The court found the plaintiff's occupation was broken and not continuous for the statutory period and dismissed the suit with costs.

Key legal issues

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01

Whether the plaintiff proved adverse possession of Isukha/Shinyalu/1590 and 1591

Holding

The plaintiff failed to establish continuous, exclusive and uninterrupted possession for 12 years

Reasoning

The plaintiff testified he bought the land in 1992 and used it only on and off, with no house on it, and no one using it. The 2nd defendant testified to occupation and a semi-permanent structure. The plaintiff's occupation was therefore broken and not continuous for the statutory 12-year period, defeating the claim on a balance of probabilities.

p. 2
02

The protection afforded to registered titles under the Land Registration Act

Holding

Section 26(1) renders registered titles indefeasible except for fraud/misrepresentation or illegal, unprocedural or corrupt acquisition

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra case to hold that a title in the hands of a third party can be impugned only where the title was obtained illegally, unprocedurally or through a corrupt scheme; the plaintiff made no such proof.

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 proven fraud or misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme
  • To acquire title by adverse possession, possession must be nec vi, nec clam, nec precario and continuous for at least 12 years

Court orders

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  1. 1.The suit is dismissed with costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions Actadverse possession provisions

Cases cited (5)

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v 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 over title to and adverse possession of land

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, "Japheth Lijoodi v Clement Shikami & another [2021] KEELC 2501 (KLR)", Case Analysis (2021). ELC Case No. 192 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2501/eng@2021-07-21

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