Jane Elizabeth Barasa v George Wesonga Ojwang’ & Charles Nyangule Namai (Civil Case 124 of 2017) [2021] KEELC 3556 (KLR)
The bottom line
#A woman who lived on Busia land for years lost her ownership claim because she couldn't prove she bought it, so she must vacate within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was on the land through purchase or by permission
The Applicant failed to prove purchase; her sale agreement was allegedly burnt without report or corroboration, so her occupation was treated as permissive
The burden lay on the Applicant to show she was on the land through purchase. Her only document was a green card; the alleged sale agreement burnt in 2008 was never reported to police or administration and no independent witness was called. The husband's corroboration was not independent. Occupation was therefore permissive, defeating adverse possession.
Whether the Applicant's possession became adverse to the Respondents
No adverse rights accrued; permission had not run for 12 years and the occupation was not peaceful after the 2010 discovery of the sale
Even if the Applicant entered through purchase, time ran only from determination of the licence upon the 2010 disclosure of the sale to the 2nd Respondent. By the time of filing, 12 years had not lapsed. Her occupation was also interrupted in mind and title registration before the period elapsed, so possession was not adverse.
Whether the 2nd Respondent is entitled to eviction and permanent injunction
Yes; having failed to prove adverse possession, the Applicant must vacate and is restrained from interfering with the 2nd Respondent's user
The 2nd Respondent, whose suit was consolidated as a counter-claim, produced purchase and transfer documents, and the 1st Respondent confirmed selling to him. No restriction on title was proved. The innocent purchaser doctrine need not arise since the adverse possession claim failed, leaving the 2nd Respondent free to enjoy the land as registered proprietor.
Legal principles established
#- A claim for adverse possession cannot succeed where possession is with the permission of the owner or in pursuance of an agreement for sale
- Occupation is either with permission or adverse; the two concepts cannot co-exist, and time runs from determination of the licence
- He who alleges a trust must establish its existence by evidence
Court orders
#- 1.The Applicant's claim by way of Originating Summons is dismissed
- 2.The Applicant to surrender vacant possession of L.R Bukhayo/Mundika/2216 within ninety (90) days of delivery of the judgment
- 3.In default of surrender of possession, eviction shall issue
- 4.Once evicted, a permanent injunction shall issue restraining the Applicant and her family or persons claiming through her from interfering with the 2nd Respondent's user of L.R Bukhayo/Mundika/2216
- 5.Costs of the two suits awarded to the Respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (claim for adverse possession); consolidated suit from the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Elizabeth Barasa v George Wesonga Ojwang’ & Charles Nyangule Namai (Civil Case 124 of 2017) [2021] KEELC 3556 (KLR)", Case Analysis (2021). Civil Case No. 124 of 2017 (O.S) (consolidated with Busia CM ELC No. 37 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3556/eng@2021-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.