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ELCDismissedELC Case No. 382 of 2017 (Formerly Machakos ELC Case No. 179 of 2014), consolidated with ELC Case No. 86 of 2018 (Formerly Machakos ELC Case No. 32 of 2014)· [2021] KEELC 3382 (KLR)

Meshack Kondoy Matee & another v Stephen Kyengo & 3 others [2021] KEELC 3382 (KLR)

Environment and Land Court
3 May 2021
5,497 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that buyers who occupy land for over twelve years can claim ownership through adverse possession, even without formal title.

What this practically means

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Executive summary

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Two consolidated suits before the Environment and Land Court at Kajiado concerned parcels Kajiado/Kaputiei Central/3490 and 3491, subdivisions by the plaintiffs' late father, Matee Ole Risa, of the mother title Kajiado/Kaputiei Central/467. The plaintiffs, registered proprietors following their father's subdivision and death, sought eviction orders, permanent injunctions, general damages and mesne profits against the defendants, who occupied portions of the land. The defendants counterclaimed, asserting they had purchased their respective portions from Matee Ole Risa in the 1990s under sale agreements, had taken vacant possession, built brick houses and cultivated the land, and had acquired title by adverse possession after more than twelve years. They also sought declarations that the subdivisions were invalid and the plaintiffs' titles fraudulently obtained. The court framed three issues: trespass and eviction, adverse possession, and costs. It found the sale agreements valid under the pre-2003 section 3(3) Law of Contract Act regime, noting part performance and possession. The plaintiffs failed to discharge the burden of proof under sections 107 and 109 of the Evidence Act as to when and how the defendants entered the land, and gave inconsistent accounts. Applying Wambugu v Njuguna, Public Trustee v Wanduru and Peter Mbiri Michuki, the court held that limitation ran from payment of the purchase price and possession, and had expired before the 2014 suits. The plaintiffs' suits were dismissed and judgment entered on the counterclaims: permanent injunction, declarations of invalid subdivision and adverse possession, orders for transfer of the respective portions, and costs of the counterclaim to the defendants.

Key legal issues

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01

Validity of the disputed Sale Agreements

Holding

The handwritten sale agreements were valid; the pre-2003 section 3(3) Law of Contract Act regime applied, and part performance (possession) validated them despite unsigned copies

Reasoning

The agreements were entered into in the 1990s before the 2003 amendment to section 3(3) of the Law of Contract Act. They had witnesses, the vendor measured out the portions and allowed purchasers into possession, and one agreement was thumb-printed by the vendor. The Plaintiffs, not being parties and being too young at the time, could not dispute them.

p. 5
02

Burden of proving trespass

Holding

The Plaintiffs failed to discharge the burden under sections 107 and 109 of the Evidence Act of proving when and how the Defendants entered the land

Reasoning

The Plaintiffs gave inconsistent dates of entry (2014/2015), never disputed the brick structures, and could not explain why their father had been sued in Machakos CMCC No. 423 of 2014 or why sale agreements existed. Their claims of chief/elders' meetings were unsupported by witnesses or minutes.

p. 5
03

Adverse possession

Holding

The Defendants, having bought and taken possession from 1992, 1993 and 1997, acquired their portions by adverse possession after the twelve-year limitation period elapsed before the 2014 suits

Reasoning

Relying on Wambugu v Njuguna, Public Trustee v Wanduru and Peter Mbiri Michuki, the court held that limitation runs from payment of purchase price and taking possession. The vendor became a trustee; subdivision did not defeat prescriptive rights already attached to the mother title Kajiado/Kaputiei Central/467.

p. 6

Legal principles established

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  • A purchaser in possession after paying the purchase price is a person in whose favour the limitation period for adverse possession can run, computed from the date of payment of the purchase price
  • Sale agreements for land entered into before the 2003 amendment of section 3(3) of the Law of Contract Act are valid even if unsigned by all parties, where witnesses existed and the vendor allowed the purchaser possession

Court orders

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  1. 1.A permanent injunction restraining the Plaintiffs, their agents, employees or servants from interfering with the Defendants' quiet possession and peaceful stay on their respective portions of land
  2. 2.A declaration that the subdivisions caused by the Plaintiffs, their families or agents without consulting the Defendants are invalid and revoked, and that title deeds to KAJIADO/KAPUTIEI CENTRAL/3490 and 3491 were obtained fraudulently and/or are invalid and not good titles
  3. 3.A declaration that the Defendants have acquired ownership by adverse possession of their respective portions comprised in Titles Nos. Kajiado/Kaputiei Central/3490 and 3491
  4. 4.The Plaintiffs directed to effect transfer to the Defendants of their respective occupied portions (Mutua Malelu – 6 acres from 3491; Stephen Kyengo – 5 acres from 3490; Muoki Nzoli – 5 acres from 3490; Stephen Muia Mbungo – 4 acres from 3491)
  5. 5.Costs of the counterclaim awarded to the Defendants

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Evidence ActSections 107 and 109
  • Limitation of Actions ActSection 38(1) and (2)
  • Limitation of Actions ActSections 13(1) and 18(4) (as cited in Peter Mbiri Michuki)

Cases cited (6)

  • Reuben K. Arap Serem V Zipporah Meli
    (2017) eKLR
  • Koech Kangogo V Chebii Yego
    (2018) eKLR
  • John Chelimo Seguton V Joseph Kitur Kiplangat
    (2018) eKLR
  • Peter Mbiri Michuki V Samuel Mugo Michuki
    Civil Appeal No. 22 of 2013
  • Wambugu V Njuguna
    (1983) KLR 173
  • Public Trustee – v- Wanduru
    (1984) KLR 314 at 319
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly stated in the judgment)

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, "Meshack Kondoy Matee & another v Stephen Kyengo & 3 others [2021] KEELC 3382 (KLR)", Case Analysis (2021). ELC Case No. 382 of 2017 (Formerly Machakos ELC Case No. 179 of 2014), consolidated with ELC Case No. 86 of 2018 (Formerly Machakos ELC Case No. 32 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3382/eng@2021-05-03

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