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ELCDismissedOriginating Summons dated 12th April, 2019 (Machakos ELC)· [2021] KEELC 2508 (KLR)

Hanningtone Oloo Ogumbo v Albert Makau Kyambo & another [2021] KEELC 2508 (KLR)

Environment and Land Court
16 July 2021
OAO. A. Angote
6,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Machakos court dismissed a 12-year adverse possession claim because the claimant couldn't prove continuous, open occupation of the Syokimau land.

What this practically means

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Executive summary

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The Plaintiff brought an Originating Summons dated 12th April 2019 claiming that he had occupied L.R. No. 12715/374 in Syokimau since December 2005 and that the registered title of the 1st Defendant, Albert Makau Kyambo, had been extinguished by adverse possession under Sections 7, 9(1), 37 and 38 of the Limitation of Actions Act. He sought a declaration of extinguishment, an order that he be registered as proprietor, and an order directing the Chief Land Registrar to effect the change. The 1st Defendant testified that he purchased the property in 1984, fenced it but did not develop it, and that in 2013, 2015 and 2019 unknown persons including the Plaintiff intermittently invaded the land, pulled down fences and erected mabati structures which he removed or which were demolished. He denied that the Plaintiff had occupied the land for twelve years. The court framed a single issue: whether the Plaintiff was entitled to the suit property by adverse possession. It declined to determine the validity of the Defendant's title, as that issue was raised only in submissions and not pleaded, and held that an adverse possession claimant concedes the registered owner's title. Applying the requirement of nec vi, nec clam, nec precario possession, the court found the Plaintiff's evidence of continuous occupation unproven: he did not explain the circumstances of his 2005 entry, produced undated photographs of no evidential value, and did not rebut the Defendant's evidence of intermittent invasions. The suit was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Whether the Plaintiff acquired title to the suit property by adverse possession

Holding

The claim failed; the Plaintiff did not prove exclusive, continuous and uninterrupted possession for twelve years

Reasoning

The Plaintiff alleged entry in 2005 but gave no evidence of the circumstances of entry or of any structure erected then. The Defendant's evidence of fencing, removal of beacons in 2013, reporting trespass in 2015 and demolition of structures was not rebutted. The Plaintiff's photographs were undated and of no evidential value as to duration of occupation. The claim was therefore not proved on a balance of probabilities.

p. 8
02

Whether the court could determine the validity of the 1st Defendant's title raised in submissions

Holding

No; the issue was not pleaded and a claimant in adverse possession concedes the registered owner's title

Reasoning

The allegations of discrepancies in identity card numbers, the sale agreement and share certificate were raised only in submissions and not in the Originating Summons or Supporting Affidavit. Parties are bound by their pleadings and courts cannot decide unpleaded issues. Further, a claim for adverse possession presupposes the registered proprietor's title. The ID number discrepancy was found to be a typographical error.

p. 6

Legal principles established

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  • A party claiming adverse possession must prove peaceful, open and continuous possession adequate in continuity, publicity and extent
  • An owner is deemed in possession of property so long as there is no intrusion; non-use does not affect title
  • A claimant cannot claim adverse possession and at the same time challenge the registered owner's title
  • Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the 1st Defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under a claim for adverse possession pursuant to Sections 7, 9(1), 37 & 38 of the 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hanningtone Oloo Ogumbo v Albert Makau Kyambo & another [2021] KEELC 2508 (KLR)", Case Analysis (2021). Originating Summons dated 12th April, 2019 (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2508/eng@2021-07-16

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