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ELCDismissedOriginating Summons dated 19th September 2017 (Bungoma Environment and Land Court)· [2021] KEELC 3051 (KLR)

James Wabwire Wanyama v James Makokha Wanjala [2021] KEELC 3051 (KLR)

Environment and Land Court
3 June 2021
4,598 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Bungoma Environment and Land Court dismissed an adverse possession claim because the claimant never proved he actually occupied the land for 12 years.

What this practically means

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Executive summary

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The plaintiff, holder of a limited grant ad litem over the estate of his late father Wanyama Sarakwe, sought by Originating Summons to be declared owner of land parcel WEST BUKUSU/SOUTH MYANGA/1496 (1¼ acres) by adverse possession, claiming his father obtained it from Benjamin Barasa Mwanja in 1972 (alternatively by purchase, alternatively as refund of bride price) and occupied it openly until his death in 2004, after which the plaintiff continued occupation. The defendant, registered proprietor since 14th September 1998 following transfer by Albina Nafula Barasa, denied the plaintiff or his father ever occupied the land, asserting purchase of the suit land in 1998 when vacant and continuous cultivation since. The court, per Boaz N. Olao J, applied the settled principles from Kasuve v Mwaani, Mtana Lewa and other Court of Appeal authorities: adverse possession requires exclusive, open, peaceful occupation for 12 years, nec vi nec clam nec precario, proved with cogent and stringent evidence. The court found the Tribunal proceedings of 1999 on which the claim was anchored concerned parcels 1495 and 1297, not the suit land, which was already registered to the defendant by then. Cross-examination established the plaintiff never lived on the land, no structures existed, and photographs showed the defendant growing maize there. Albina's denial of the sale was found dishonest. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff proved adverse possession of WEST BUKUSU/SOUTH MYANGA/1496

Holding

The claim failed because the plaintiff never proved occupation of the suit land; the land his father occupied and litigated over was a different parcel

Reasoning

The claim was anchored on the 1999 Tribunal proceedings between the plaintiff's father and Albina Nafula Barasa, but the Tribunal award concerned parcels 1495 and 1297, not the suit land, which the defendant had already been registered to own in September 1998. Cross-examination showed neither the plaintiff nor his father lived on the land, no structures existed, and photographs showed the defendant growing maize there. The Tribunal award confirms the claim attached to a different parcel.

p. 6
02

Whether the suit land was the subject of the Bumula Land Disputes Tribunal proceedings

Holding

It was not; the Tribunal award concerned parcels 1495 and 1297

Reasoning

The Tribunal award of 2nd March 1999 expressly identified the land awarded to Wanyama Sarakwe as part of parcels 1495 and 1297, not the suit land 1496. By the time of the award the suit land was already registered in the defendant's name (14th September 1998), so any claim over it should have been brought against the defendant, not Albina.

p. 4
03

Who was in occupation and possession of the suit land

Holding

The defendant, on the evidence, was in possession

Reasoning

Photographs of the defendant standing in a maize crop on the land, the agreed status quo of 8th July 2019 allowing him to tend his crop, and witness admissions that nobody utilized the land since 1999 established the defendant's possession. Albina's denial of selling the land was found dishonest given the register showing she transferred it to the defendant in September 1998.

p. 6

Legal principles established

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  • A claimant in adverse possession must prove exclusive, open possession as of right without interruption for 12 years
  • Occupation must be nec vi nec clam nec precario - not by force, secrecy or persuasion
  • A claimant must be specific about the identity of the land claimed; cogent and stringent proof of possession is required to deprive a registered owner of title

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The plaintiff to pay the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSections 38(1), 6, 13 and 17
  • Land Registration Act 2012Section 28(h)
  • Land Act 2012Section 7
  • Constitution of Kenya 2010general reference (new Land Laws promulgated after the 2010 Constitution)

Cases cited (8)

  • KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS
    2004 1 KLR 184
  • BENJAMIN KAMAU & OTHERS .V. GLADYS NJERI
    C.A CIVIL APPEAL No 2136 of 1996
  • KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFORD & CO LTD
    1980 KLR 10
  • MTANA LEWA .V. KAHINDI NGALA MWAGANDI
    C.A CIVIL APEEAL No 56 of 2014 [2015 eKLR]
  • ROBINSON KIPLAGAT TUWEI .V. FELIX KIPCHOGE LIMO LANGAT
    C.A CIVIL APPEAL No 110 of 2019 [2020 eKLR]
  • PETER NJAU KAIRU .V. STEPHEN NDUNGU NJENGA & ANOTHER
    C.A CIVIL APPEAL No 57 of 1997
  • SISTO WAMBUGU .V. KAMAU NJUGUNA
    1983 KLR
  • LITTLEDALE .V. LIVERPOOL COLLEGE
    [1900] 1 CH 19
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act; adverse possession claim by Originating Summons under the Environment and Land Court's original jurisdiction

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, "James Wabwire Wanyama v James Makokha Wanjala [2021] KEELC 3051 (KLR)", Case Analysis (2021). Originating Summons dated 19th September 2017 (Bungoma Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3051/eng@2021-06-03

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