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ELCPartially AllowedELC Case No. 49 of 2013· [2021] KEELC 2857 (KLR)

Yacobo Wanyama & 4 others v Charles Barasa Manaba [2021] KEELC 2857 (KLR)

Environment and Land Court
22 June 2021
2,252 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a family living on land openly for 19 years legally owned it, even though someone else held the title deed.

What this practically means

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Executive summary

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The plaintiffs, members of the family of the late Solomon Wanyama Nabuora, sued the registered proprietor of land parcel Kakamega/Chekalini/556 claiming title by adverse possession. They asserted occupation of the entire parcel since 1st January 1964 under the doctrine of adverse possession, seeking declarations that the defendant's title was extinguished, a vesting order, rectification of the register and costs. The defendant, who inherited the land through Succession Cause No. 415 of 1997 from his father Marko Nabwera Manaba, countered that the land had been allocated to his father in the Chekalini Settlement Scheme, that the plaintiffs were squatters of the Settlement Fund Trustee against whom adverse possession could not run, and that numerous suits for trespass and eviction (including Civil Suit No. 74 of 1985 and Civil Suit No. 219 of 2012) meant their occupation was never peaceful. The court restated the indefeasibility of registered title under sections 24(a) and 26(1) of the Land Registration Act, and the principles governing adverse possession from Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords: possession must be open, as of right, nec vi, nec clam, nec precario, and continuous for at least twelve years. Finding that the plaintiffs peacefully occupied the land from 1964 to 1983, a period of nineteen years, built homes and kept livestock while the defendant never resided on the parcel, the court held that the defendant's title was extinguished by adverse possession. The court declared the plaintiffs owners of the parcel, ordered transfer within ninety days with the Deputy Registrar empowered to sign in default, and made no orders as to costs.

Key legal issues

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01

Whether the defendant's title was extinguished by adverse possession

Holding

Yes. The plaintiffs established exclusive, continuous and uninterrupted possession for over 12 years, having peacefully occupied the land from 1964 to 1983, a period of 19 years, while the defendant never resided there.

Reasoning

The court applied the principles in Wambugu v Njuguna and Kimani Ruchire v Swift Rutherfords, requiring proof of dispossession or discontinuance of possession by the title holder and possession that is open, as of right, and without force, secrecy or permission. The evidence showed the plaintiffs and their family settled the entire parcel by 1st January 1964, built several homes (16 houses), kept livestock, and their possession was never interrupted by actual eviction. The defendant relied on litigation (Civil Suits 74 of 1985, 186 of 2000, tribunal proceedings and Civil Suit 219 of 2012) to show lack of peaceful enjoyment, but the court found 19 years of peaceful existence prior, exceeding the statutory 12 years.

p. 3
02

The legal framework governing registered title and its challenge

Holding

Sections 24(a) and 26(1) of the Land Registration Act vest absolute ownership in the registered proprietor and make the certificate of title prima facie evidence of indefeasible ownership, subject only to challenge for fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition.

Reasoning

The court set out the statutory framework of indefeasibility of title, citing Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna on the protective stance of the law toward title. However, it went on to find that the question before it was whether the defendant held a good title given the claim of adverse possession, and on the evidence concluded that limitation had run against the defendant, extinguishing his rights.

p. 2

Legal principles established

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  • To acquire title by adverse possession, the claimant must prove open, continuous and uninterrupted possession as of right for at least 12 years, nec vi, nec clam, nec precario
  • A registered proprietor's title is prima facie absolute and indefeasible but may be challenged on grounds of fraud, misrepresentation, or acquisition that is illegal, unprocedurally obtained or through a corrupt scheme

Court orders

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  1. 1.A declaration that the defendant's right over title land parcel No. Kakamega/Chekalini/556 got extinguished by adverse possession
  2. 2.A declaration that upon expiry of 12 years the defendant held and currently holds the said piece of land in trust for the plaintiffs
  3. 3.The plaintiffs be declared the owners of land parcel No. Kakamega/Chekalini/556 by virtue of adverse possession, and the defendant to transfer the suit land to the plaintiffs within 90 days from the date of the judgment, and in default the Deputy Registrar to sign the transfer documents
  4. 4.No orders as to costs

Authorities

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Legislation

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

Cases cited (5)

  • Elijah Makeri Nyangw'ra v 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 over claims relating to title 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, "Yacobo Wanyama & 4 others v Charles Barasa Manaba [2021] KEELC 2857 (KLR)", Case Analysis (2021). ELC Case No. 49 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2857/eng@2021-06-22

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