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ELCPartially AllowedOriginating Summons dated 28th May 2004 (number not stated in judgment)· [2021] KEELC 3105 (KLR)

Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch [2021] KEELC 3105 (KLR)

Environment and Land Court
13 May 2021
MOM. A. Odeny
4,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that 40+ years of open, uninterrupted occupation gave the occupant ownership by adverse possession, despite the owner's lease renewal.

What this practically means

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Executive summary

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By an Originating Summons dated 28th May 2004, the plaintiff sought orders that he was entitled to plot No. 3 Bondo Township as purchaser for value, a declaration that the defendants held the land in trust for him, a declaration that he had acquired the whole parcel by adverse possession, and an order compelling transfer of Bondo/Market/3 to him, with power for the Deputy Registrar to sign transfer documents in default. The plaintiff testified that the plot belonged to his late uncle, that he paid rate arrears to save it from repossession, was permitted to construct in 1972, and was registered by the Siaya County Council as co-owner by minutes of 23rd March 1973 and 12th June 1973 alongside Paul Ajulu, Jakob Jarungu and himself. The defendant admitted the original ownership but contended that the 33-year lease expired on 1st April 1998, reverting to the County Council, and that the plaintiff had not proved adverse possession. Framing two issues, the court applied Wilson Kazungu Katana v Salim Abdalla Bakshwein and related authorities to find that the plaintiff occupied openly, exclusively and uninterruptedly from 1972, well beyond the statutory 12 years. Prescription, the court held, runs against present title holders and their predecessors, so the defendant's lease renewal and succession proceedings did not defeat accrued rights. Relying on Gabriel Mbui v Mukindia Maranya, the court held that the registered proprietors hold the land in trust for the adverse possessor once the limitation period expires. The suit was allowed with costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff acquired Plot No. 3 Bondo Market by adverse possession

Holding

Yes. The plaintiff occupied the plot from 1972 openly, exclusively and without interruption for over 12 years; time ran against the predecessors in title notwithstanding the lease renewal and succession proceedings by the defendant.

Reasoning

The court found it undisputed that the plaintiff was sanctioned as a co-owner by the Siaya County Council in 1973, constructed in 1972 and paid rates continuously. Applying Katana v Bakshwein and related authorities, the occupation was open, exclusive and continuous well beyond the statutory 12 years. Renewal of the lease and succession by the defendant could not defeat rights already accrued, since prescription runs against predecessors in title too.

p. 4
02

Whether the defendants hold the suit land in trust for the plaintiff

Holding

Yes. Upon expiry of the limitation period, the registered proprietors hold the land in trust for the adverse possessor.

Reasoning

Relying on Gabriel Mbui v Mukindia Maranya (citing Hosea v Njiru), the court held that when a plea of adverse possession of registered land is upheld, the registered proprietor holds the land in trust for the person who acquired title by adverse possession. The defendants' rights were extinguished after twelve years of uninterrupted occupation.

p. 5
03

Whether the plaintiff is entitled to the whole plot as purchaser for value from the predecessor of the respondent

Holding

Not expressly decided on purchase; the court instead founded the plaintiff's entitlement on adverse possession, finding the plot identifiable with a title issued and rates paid by the plaintiff.

Reasoning

The court framed the issue but its analysis concentrated on adverse possession and co-ownership. It noted the Council had sanctioned the plaintiff as co-owner in 1973 and that he paid rates. The concluding finding is expressed in terms of adverse possession rather than purchase, and the plaintiff was granted the orders sought on that basis.

p. 5

Legal principles established

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  • A claim for adverse possession subsists not only against the present holders of title but also against their predecessors in title; renewal of a lease or succession proceedings by the registered owner do not extinguish rights already accrued.
  • Where a plea of adverse possession of registered land is upheld, the registered proprietor holds the land in trust for the person who has acquired title by adverse possession.
  • Possession begins to be adverse only when entry is adverse to the owner's title or when consent is terminated and the owner takes no steps for twelve years; permissive possession cannot ripen into adverse possession.
  • The land or portion of land adversely possessed must be definitely identified, defined or at least identifiable with a clear boundary.

Court orders

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  1. 1.Declaration that the plaintiff has acquired Plot No. 3 Bondo Market by adverse possession and is entitled to the orders sought in the originating summons (including orders (c), (d), (e) and (f) as prayed)
  2. 2.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 91(1), (3), (5), (6)
  • Limitation of Actions Act (Cap 22)Sections 7, 13
  • Registered Lands Act (repealed)Section 30(f)
  • Law Reform ActSection 2
  • Land Control Actconsent provisions (as discussed in Gabriel Mbui v Mukindia Maranya)

Cases cited (25)

  • K N vs M P N [2017]
    1 eKLR
  • Kivuitu -v- Kivuitu
    [1991] KLR 248
  • Moses Bii vs Kericho District Land Registrar & another
    [2015] eKLR
  • Wambugu —v- Njuguna
    (1983) KLR 173
  • Mbira -v- Gachuhi
    (2002) IEALR 137
  • Jandu -v- Kirplal & Another
    (1975) EA 225
  • Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Kasuve v Mwaani Investments Limited & 4 others
    [2004] 1 KLR 184
  • Wanje v Saikwa
  • Samuel Miki Waweru v Jane Njeri Richu
    Civil Appeal No. 122 of 2001 (UR)
  • Kamataka Board of Wakf –vs- Government of India & Others
    [2004] 10 SCC 779
  • Titus Kigoro Munyi v. Peter Mburu Kimani
    (2015) eKLR
  • Peter Thuo Kairu – v- Kuria Gacheru
    (1988) 2 KLR 111
  • Karuntimi Raiji v. M’Makinya M’itunga
    (2013) eKLR
  • James Mwangi & Others – v- Mukinye Enterprises Ltd.
    Nairobi Civil Case no. 3912 of 1986
  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR
  • Hosea v Njiru and others
    [1974] E A 526
  • Githuci Farmers Co Ltd v Gichamba
    [1973] E A L 8
  • Kinguru v Gathangi
    [1976] Kenya L R 253
  • Matheri v Kanji
    [1976] Kenya L R 140
  • Alibhai v Alibhai
    [1938] 5 E A C A 1
  • Gathure v Beverly
    [1965] E A 514
  • Wandera and another v Attorney-General
    [1976] Kenya L R 275
  • Wanyoike v Kahiri
    [1979] Kenya L R 236
  • Wainaina v Murai and others
    [1976] Kenya L R 227
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over a claim for adverse possession, trust and co-ownership of plot No. 3 Bondo Market (specific enabling provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch [2021] KEELC 3105 (KLR)", Case Analysis (2021). Originating Summons dated 28th May 2004 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3105/eng@2021-05-13

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