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ELCPartially AllowedELC Case No. 269 of 2017· [2021] KEELC 2511 (KLR)

Ainea Okoti Olaka & another v Janefrances Ayuma Analo [2021] KEELC 2511 (KLR)

Environment and Land Court
21 July 2021
2,620 words in judgment
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The bottom line

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The Environment and Land Court in Kakamega awarded a family 0.07 hectares of land after 40+ years of open occupation, but dismissed a co-claimant who showed up without evidence.

What this practically means

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Executive summary

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The plaintiffs claimed portions of Land Parcel No. Butsotso/Shikoti/2237 (0.07 and 0.06 hectares) by adverse possession, seeking declarations extinguishing the defendant's title, vesting orders, and an order compelling transfer. The defendant, administratrix of the estate of the late Robert Analo John and the registered owner of the parcel created out of Butsotso/Shikoti/308, raised a preliminary objection that the suit was res judicata, having been determined by the Kakamega Land Disputes Tribunal, the Provincial Land Disputes Appeals Committee and the High Court on appeal. The court, applying Mukisa Biscuit and Oraro v Mbajja, held that the tribunal decisions had been quashed for want of jurisdiction; a tribunal lacking jurisdiction is not a court competent to try the subsequent suit, so res judicata did not apply. On the merits, the court applied section 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 had been in exclusive, continuous, open and uninterrupted possession of 0.07 hectares from 1978, a period exceeding 12 years, noting the defendant's admission that her husband bought only 0.5 acres and that the 1st plaintiff collects rent from the portion. The 2nd plaintiff neither attended court nor testified, and his suit was dismissed with no orders as to costs. The court declared the defendant holds the 0.07 hectare portion in trust for the 1st plaintiff, declared him entitled to it by adverse possession, ordered transfer within 90 days with the Deputy Registrar empowered to sign in default, and awarded costs to the 1st plaintiff.

Key legal issues

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01

Whether the suit is res judicata

Holding

No - the prior tribunal and appellate decisions were quashed for want of jurisdiction, so the tribunals were not a court competent to try the subsequent suit

Reasoning

The defendant objected that the suit was res judicata the issues determined by the Land Disputes Tribunal, the Provincial Appeals Committee and the High Court appeal. On perusal of ELC Appeal Case No. 7 of 2014 (formerly Kakamega High Court Civil Appeal No. 47 of 2011), the court found the tribunal decisions had been quashed because the tribunals lacked jurisdiction. A tribunal without jurisdiction is not a court competent to try the subsequent suit under section 7 of the Civil Procedure Act, so its proceedings cannot ground res judicata.

p. 2
02

Whether the 1st plaintiff acquired 0.07 hectares by adverse possession

Holding

Yes - he proved exclusive, continuous and uninterrupted possession for over 12 years from 1978

Reasoning

Applying the Wambugu v Njuguna principles and Kimani Ruchire v Swift Rutherfords, the claimant had to prove possession nec vi, nec clam, nec precario for the statutory 12 years. The 1st plaintiff's evidence showed his father bought the portion in 1976, built rental houses, and the family has been in possession since 1978 collecting rent. Notably, the defendant admitted the husband bought only 0.5 acres while her title reads 0.41 hectares, and she confirmed the 1st plaintiff collects rent from the portion. The claim was established on a balance of probabilities.

p. 3
03

Whether the 2nd plaintiff proved his claim

Holding

No - his suit is dismissed for failure to adduce evidence

Reasoning

The 2nd plaintiff neither attended court nor testified, so no evidence supported his claim to 0.06 hectares. His suit was dismissed with no orders as to costs.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law not dependent on ascertainment of facts
  • Proceedings of a tribunal lacking jurisdiction cannot found a plea of res judicata
  • A registered proprietor's title is prima facie absolute and indefeasible except for fraud, misrepresentation, or illegality, unprocedurality or corrupt scheme
  • Adverse possession requires proof of nec vi, nec clam, nec precario use and continuous, uninterrupted possession for at least 12 years

Court orders

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  1. 1.Declaration that the defendant holds in trust for the 1st plaintiff a portion of Land Parcel No. Butsotso/Shikoti/2237 measuring 0.07 hectares
  2. 2.Declaration that the 1st plaintiff is the owner of 0.07 hectares of Land Parcel No. Butsotso/Shikoti/2237 by virtue of adverse possession, with the defendant ordered to transfer the said portion within 90 days, and in default the Deputy Registrar to sign the transfer documents
  3. 3.Costs to the 1st plaintiff
  4. 4.Dismissal of the 2nd plaintiff's suit with no orders as to costs

Authorities

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Legislation

  • Limitation of Actions Actsection 38
  • Civil Procedure Actsections 6 and 7
  • Land Registration Actsection 24(a)
  • Land Registration Actsection 26(1)

Cases cited (7)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    (2005) eKLR
  • 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 vs Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire vs Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; claim for adverse possession under section 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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Cite this brief

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Cite this brief

Caselaw, "Ainea Okoti Olaka & another v Janefrances Ayuma Analo [2021] KEELC 2511 (KLR)", Case Analysis (2021). ELC Case No. 269 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2511/eng@2021-07-21

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