Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. 53 of 2018· [2021] KEELC 2516 (KLR)

Timona Kimarong Karatasi v Edwin Juma Lumbasi & another [2021] KEELC 2516 (KLR)

Environment and Land Court
21 July 2021
1,788 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A man who bought and occupied a quarter-acre plot for over 12 years won ownership from the registered titleholders despite holding no title himself.

What this practically means

#

Executive summary

#
The plaintiff sued the two registered joint proprietors of land parcel North Malakisi/West Sasuri/762 claiming ¼ acre by adverse possession, seeking transfer of that portion, declarations extinguishing the defendants' rights, an order under section 38 of the Limitation of Actions Act for registration as proprietor, and costs. The plaintiff testified that in 1992 he bought the portion from Ainea Wamembo under a written sale agreement, paid the purchase price in full by 1993, and took possession, cultivating the land and building a house; three witnesses corroborated his account. The defendants denied that Ainea Wamembo was party to any sale agreement, relying on their registered title. The court set out the land registration framework under sections 24(a) and 26(1) of the Land Registration Act, noting that a certificate of title is prima facie evidence of absolute and indefeasible ownership challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition, and adopted the Elijah Makeri Nyangw'ra reasoning to that effect. Applying the Wambugu v Njuguna principles approved in Gerald Muriithi and the nec vi, nec clam, nec precario standard from Kimani Ruchire, the court found the plaintiff in exclusive, continuous and uninterrupted possession for over 12 years from 1992 to 2008, possession becoming adverse after full payment of the purchase price, a fact not seriously contested since the 2nd defendant conceded 16 years of occupation. The court declared the plaintiff entitled to ¼ acre by adverse possession, ordered the defendants to transfer it within 90 days, with default execution by the Deputy Registrar, and made no orders as to costs.

Key legal issues

#
01

Whether the plaintiff proved adverse possession of ¼ acre of the suit parcel

Holding

Yes - the plaintiff established exclusive, continuous and uninterrupted possession exceeding 12 years from 1992 to 2008, following full payment of the purchase price

Reasoning

The plaintiff bought ¼ acre from Ainea Wamembo in 1992 and paid the purchase price in full by 1993, with three witnesses corroborating. The 2nd defendant conceded the plaintiff had been in occupation for 16 years. Applying the Wambugu v Njuguna principles, possession became adverse after payment of the last installment, and the court found the possession continuous, open and unbroken for over 12 years, establishing the claim on a balance of probabilities.

p. 3
02

The effect of the defendants' registered joint title over the suit parcel

Holding

Registered title is prima facie absolute and indefeasible under sections 24(a) and 26(1) of the Land Registration Act, challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Reasoning

The court invoked sections 24(a) and 26(1) of the Land Registration Act, quoting both provisions, and adopted the reasoning in Elijah Makeri Nyangw'ra that title in the hands of an innocent third party can nonetheless be impugned where obtained illegally, unprocedurally or through a corrupt scheme. However, the suit was ultimately decided on the adverse possession principles rather than on impugning the title.

p. 2

Legal principles established

#
  • Registration as proprietor vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • Where a claimant pleads the right to land under an agreement and in the alternative seeks adverse possession, the claimant's possession becomes adverse after payment of the last installment of the purchase price, and he succeeds upon occupation for at least 12 years after such payment
  • To acquire title by adverse possession, the claimant must prove possession as of right - nec vi, nec clam, nec precario - and the possession must be continuous and not broken

Court orders

#
  1. 1.A declaration that the plaintiff is entitled to a portion of land parcel No. North Malakisi/West Sasuri/762 measuring approximately ¼ acres by virtue of adverse possession
  2. 2.That the defendants as proprietors of land parcel No. North Malakisi/West Sasuri/762 do transfer ¼ acre to the applicant within 90 days from the date of the judgment, and in default, the Deputy Registrar to sign all relevant transfer documents in favour of the plaintiff
  3. 3.No orders as to costs

Authorities

#

Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Limitation of Actions ActSection 38

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
  • 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
Environment and Land Court jurisdiction under the Environment and Land Court Act over claims relating to title and adverse possession of land

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Timona Kimarong Karatasi v Edwin Juma Lumbasi & another [2021] KEELC 2516 (KLR)", Case Analysis (2021). ELC Case No. 53 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2516/eng@2021-07-21

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