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ELCPartially AllowedOriginating Summons dated 13th March, 2007· [2021] KEELC 3577 (KLR)

Wilfred Serem & another v Elimina Alisonya Francis (sued as the administrator of the Estate of the late Paulo Mulinya Mudunya) [2021] KEELC 3577 (KLR)

Environment and Land Court
28 April 2021
2,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who paid for land but never got the title lost ownership through adverse possession but won back the purchase money with interest and costs.

What this practically means

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Executive summary

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The Plaintiffs, Wilfred Serem and Everlyne Chebitok Chelugui, sued the administrator of the estate of Paulo Mulinya Mudunya claiming that by adverse possession they had acquired Uasin Gishu/Mile Thirteen Scheme/257, purchased under a sale agreement of 9th February 1993 between the vendor and the late Noah Kipngeny Chelugui. They sought cancellation of the Defendant's title, registration as proprietors, issuance of title and costs. The Defendant denied the sale and asserted her father was displaced in the 1992 clashes. The Court found the sale agreement proved despite the vendor not signing it, since his identity card number appeared beside his name and his relatives witnessed it; total payments of Kshs.209,000 against a Kshs.210,000 price were proved. Holding that entry under a sale agreement is permissive and time runs from payment of the purchase price, the Court found adverse possession began only on 14th February 2003, the last payment, leaving about four years by filing in 2007 - insufficient to extinguish title. The adverse possession claim therefore failed. However, because the vendor died without transferring the land and the estate showed no interest in completing the sale, the Court invoked Article 159(2)(d) of the Constitution and the overriding objective to order the estate to refund Kshs.209,000 with interest at court rates from filing, treating it as a recoverable debt under Section 7 of the Land Control Act, though refund was not prayed. The Plaintiffs also received costs. The suit was thus partially allowed.

Key legal issues

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01

Existence and enforceability of the sale agreement of 9th February 1993 despite the vendor not signing it

Holding

The Court found the sale agreement proved: the vendor's ID number was inserted next to his name, his wife, son and son-in-law witnessed it, and no complaint of forgery was ever lodged; Section 3(3) Law of Contract Act requirements were treated as satisfied

Reasoning

The Court applied Section 3(3) of the Law of Contract Act requiring a written, signed and attested contract for land dispositions. Although the vendor did not personally sign, his identity card number appeared beside his name, the witnesses included his wife, son and son-in-law, and neither the vendor nor witnesses ever complained of unauthorised insertion of their details. The defendant also failed to call her brother, a listed witness.

p. 2
02

When the Plaintiffs' possession became adverse

Holding

Possession under the sale agreement was permissive and only became adverse after the last purchase-price payment on 14th February 2003; by filing on 13th March 2007 only about four years had run, so title was not extinguished

Reasoning

Entry was pursuant to a sale agreement, so occupation was with the vendor's permission and could only turn adverse upon the agreement becoming void or permission withdrawn. Following Public Trustee v Wanduru, time runs from payment of the purchase price. The last acknowledged payment was 14th February 2003, leaving about four years to filing, well short of the twelve years required.

p. 3
03

Whether the Court could order refund of the purchase price though not pleaded

Holding

Yes. The Court ordered the estate to refund Kshs.209,000 as a recoverable debt under Section 7 of the Land Control Act, invoking Article 159(2)(d) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act to attain a just resolution

Reasoning

Although refund was not among the prayers, the Court held the purchase price is a recoverable debt under Section 7 of the Land Control Act since the vendor died without completing the transfer and the administratrix showed no interest in completing the sale. Relying on the overriding objective and Article 159(2)(d), the Court granted the refund to spare the Plaintiffs a fresh suit.

p. 3

Legal principles established

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  • Title of a registered proprietor is extinguished in favour of an adverse possessor after 12 years of adverse possession under Sections 7, 13 and 17 of the Limitation of Actions Act
  • Time for adverse possession of a purchaser in possession runs from the date of payment of the purchase price
  • A claim for adverse possession cannot co-exist with a claim for a purchaser's interest

Court orders

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  1. 1.Judgment entered for the Plaintiffs against the Defendant for refund of Kshs.209,000 being the purchase price received under the sale agreement dated 9th February, 1993
  2. 2.Interest on the Kshs.209,000 at Court's rate from the date of filing the suit until payment in full
  3. 3.Costs of the suit to the Plaintiffs

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Limitation of Actions ActSections 7, 13 and 17
  • Land Control ActSection 7
  • Civil Procedure ActSections 1A, 1B, 3A and 27
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Muchanga Investments Ltd Vs Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
  • Public Trustee Vs Wanduru
    [1984] KLR 314
  • Benjamin Kamau Murma & Others Vs Glady's Njeri
    C.A. No. 213 of 1996
  • Willy Kimutai Kitillit Vs Michael Kibet
    [2018] eKLR
  • Macharia Mwangi Maina & 87 Others Vs Davidson Mwangi Kagiri
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over a claim for adverse possession of land (Limitation of Actions Act, Cap 22); relief beyond prayers granted under Article 159(2)(d) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Wilfred Serem & another v Elimina Alisonya Francis (sued as the administrator of the Estate of the late Paulo Mulinya Mudunya) [2021] KEELC 3577 (KLR)", Case Analysis (2021). Originating Summons dated 13th March, 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3577/eng@2021-04-28

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