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ELCPartially Allowed· [2021] KEELC 2591 (KLR)

Marycella Nafula Simiyu (Suing as the personal and legal representative of the Estate of Nicholas Simiyu Sululu - Deceased) v Margaret Wangila Wanyisia & another [2021] KEELC 2591 (KLR)

Environment and Land Court
15 July 2021
BOBoaz N. Olao
5,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that long occupation for over 12 years gave the family ownership of land, defeating a registered title holder's eviction claim.

What this practically means

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Executive summary

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The plaintiff, as personal representative of the late NICHOLAS SIMIYU SULULU, registered proprietor of land parcel BOKOLI/MUKUYUNI/1151 since 18th June 1991, sued the defendants (the daughter-in-law and son of the first registered proprietor, WANYISHA MURACHI) seeking their eviction, a permanent injunction and exhumation of the remains of HENRY WANYISIA buried on the land. The defendants denied the plaintiff's title, pleaded fraud in the transfer to SULULU, and by Counter-Claim asserted title by adverse possession having occupied the land since 1988, developing it and burying their dead thereon. The court found that POCHI KHAEMBA, from whom SULULU allegedly purchased the land in 1967, was never its proprietor and had no interest to transfer; further, the 1991 transfer and Land Control Board consent were fraudulent because WANYISHA MURACHI had died in 1981. On adverse possession, the court held time ran from SULULU's registration on 18th June 1991, and the defendants' conceded open, exclusive, peaceful and uninterrupted occupation for 26 years far exceeded the statutory 12-year period, with no suit or effective entry interrupting possession. The plaintiff's suit was dismissed and judgment entered on the Counter-Claim: the defendants acquired the land by adverse possession, the register is to be cancelled and substituted in their names to hold in trust for the family of the late WANYISHA MURACHI, and the plaintiff to execute transfer documents within 30 days, failing which the Deputy Registrar to execute. Exercising compassion, the court ordered each party to bear their own costs.

Key legal issues

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01

Validity of SULULU's title to the suit land

Holding

The title was fraudulently acquired: POCHI KHAEMBA was never the proprietor and had no interest to transfer, and the 1991 transfer was executed and consent obtained long after the registered proprietor WANYISHA MURACHI died in 1981

Reasoning

The Green Card shows the land was first registered in the name of WANYISHA MURACHI on 31st December 1964 and transferred to SULULU on 18th June 1991. At no time was POCHI KHAEMBA a proprietor, so he had no interest, equitable or otherwise, to transfer. Uncontroverted evidence showed WANYISHA MURACHI died in 1981, yet a Land Control Board consent dated 15th December 1990 and a transfer dated 17th June 1991 purport to come from him, making the process fraudulent.

p. 4
02

Whether the defendants acquired the suit land by adverse possession

Holding

Yes. Time ran from 18th June 1991 when SULULU was registered, and by the filing of the suit in 2017 the defendants had been in open, exclusive, peaceful and uninterrupted occupation for 26 years, exceeding the 12-year statutory period

Reasoning

The plaintiff conceded the defendants moved onto the land in 1988, built homes, cultivated and buried their dead there, and that she herself lives elsewhere. Time could only run from registration of SULULU as proprietor in 1991; before that the occupation was with the consent of the first registered owner. No suit, effective entry or admission interrupted the possession. The occupation therefore exceeded 12 years and title was extinguished.

p. 6
03

Whether the plaintiff's claim for eviction, injunction and exhumation was sustainable

Holding

No. The claim was statute-barred and not tenable in the face of the defendants' established adverse possession

Reasoning

The defendants had developed the land, settled their families and buried their dead, including the first registered proprietor and the 1st defendant's husband. The only suit the plaintiff filed to assert ownership was the present one, filed in 2017, too late to interrupt adverse possession. Accordingly the reliefs of eviction, permanent injunction and exhumation could not issue and the suit was dismissed.

p. 6

Legal principles established

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  • A person with no title, apparent or otherwise, cannot pass good title; a transaction by such a person is void ab initio
  • Adverse possession extinguishes a registered proprietor's title after 12 years of open, exclusive, peaceful and uninterrupted possession, and is an overriding interest need not be noted on the register
  • A claim for adverse possession may be pursued by way of defence and Counter-Claim, and survives against a deceased registered proprietor's estate

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Judgment entered for the defendants on their Counter-Claim: the defendants have acquired land parcel NO BOKOLI/MUKUYUNI/1151 by way of adverse possession
  3. 3.The Land Registrar Bungoma to cancel the name of NICHOLAS SIMIYU SULULU from the register of land parcel NO BOKOLI/MUKUYUNI/1151 and replace it with the names of MARGARET WANGILA WANYISIA and SAMUEL BARASA WANYISIA to hold in trust for the family of the late WANYISHA MURACHI
  4. 4.MARYCELLA NAFULA SIMIYU to execute all necessary documents to facilitate the registration of the defendants as proprietors within 30 days of delivery of the judgment
  5. 5.In default, the Deputy Registrar shall execute all such documents on behalf of MARYCELLA NAFULA SIMIYU
  6. 6.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38(1)
  • Law of Succession ActSection 45(1)
  • Land Registration Act 2012Section 28(h)
  • Registered Land Act (repealed)Section 30(f)
  • Land ActSection 7(d)

Cases cited (12)

  • JANE GACHOKI GATHECA .V. PRISCILLA NYAWIRA GITUNGU & ANOTHER
    2008 eKLR
  • KATENDE .V. HARIDAR & CO LTD
    2008 2 E.A 173
  • CHEVRON (K) LTD .V. HARRISSON CHARO WAS SHUTU
    C.A CIVIL APPEAL No 17 of 2016 [2016 eKLR]
  • GULAM MARIAM NORDIN .V. JULIUS CHARO KARISA
    CIVIL APPEAL No 26 of 2015 [2015 eKLR]
  • KARUNTIMI RAIJI .V. M'MAKINYA M'ITUNGA
    2013 eKLR
  • KASUVE .V. MWAANI INVESTMENT LTD & OTHERS
    2004 1 KLR 184
  • KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFOR & COMPANY LITD
    1980 KLR 10
  • GRACE WAIRIMU SOROMA .V. CHAKA LTD & OTHERS
    2017 eKLR
  • KWEYU .V. OMUTO
    1990 KLR 709
  • GITHU .V. NDEETE
    1984 KLR 776
  • NGUGUNA NDATHO .V MAASAI ITUMO & OTHERS
    C.A CIVIL APPEAL No NAI 231 of 1999 [2002 eKLR]
  • WAMBUGU .V. NJUGUNA
    1983 KLR 712
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel BOKOLI/MUKUYUNI/1151

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, "Marycella Nafula Simiyu (Suing as the personal and legal representative of the Estate of Nicholas Simiyu Sululu - Deceased) v Margaret Wangila Wanyisia & another [2021] KEELC 2591 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2591/eng@2021-07-15

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