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ELCPartially AllowedELC Case No. 118 of 2015· [2021] KEELC 3607 (KLR)

Reuben Kotwa Meda Alais v Nora Kole & another [2021] KEELC 3607 (KLR)

Environment and Land Court
21 April 2021
2,116 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court can transfer registered land to someone who has openly occupied it for over 12 years, even against a title deed.

What this practically means

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Executive summary

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The plaintiff, Reuben Kotwa Meda, claimed land parcel Kakamega/Bushu/489 (approx. 11.79 acres) against the defendants, administrators of the estate of the deceased registered proprietor Kole Inzaniaji, seeking declarations of adverse possession and trust, cancellation of the deceased's registration, an order under section 38 of the Limitation of Actions Act for his registration as proprietor, and costs. He testified that he bought the suit land in 1985 from Daniel Makokha Bwoya and Joseph Matsasio but was mistakenly issued title to parcel 488, discovering the error only when seeking subdivision; he and his family had occupied and used the suit parcel since 1985 and his wife was buried there. The defendants denied his entitlement, asserting he validly bought parcel 488 and occupied the suit land wrongfully, and on less than 2 acres. The court recited sections 24 and 26 of the Land Registration Act on indefeasibility of title, applied the Wambugu v Njuguna principles and the Kimani Ruchire nec vi, nec clam, nec precario test, and disbelieved the first defendant's evidence as inconsistent and unreliable. It found the plaintiff in exclusive, continuous and uninterrupted possession for over 12 years (1985-2014) and entered judgment on a balance of probabilities. It declared the plaintiff entitled by adverse possession, ordered his registration as sole proprietor, cancelled the deceased's registration, and directed the administrators to transfer the land within 90 days, failing which the Executive Officer to sign the transfer documents. No orders as to costs. The trust and extinction-of-interest declarations sought were not granted.

Key legal issues

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01

Whether the plaintiff acquired title to land parcel Kakamega/Bushu/489 by adverse possession

Holding

Yes; the plaintiff was in exclusive, continuous and uninterrupted possession from 1985 to 2014, exceeding the statutory 12 years

Reasoning

The court applied the Wambugu v Njuguna principles and the Kimani Ruchire test of nec vi, nec clam, nec precario. It found as fact that the plaintiff bought the suit land, took possession in 1985, buried his wife there, and that the defendants' evidence denying his possession was inconsistent and unreliable. Possession was continuous and unbroken for over 12 years, defeating the registered proprietor's title under the Limitation of Actions Act.

p. 3
02

Whether the certificate of title of the deceased registered proprietor shields the land from the adverse possession claim

Holding

No; the indefeasibility under sections 24 and 26 of the Land Registration Act does not defeat a claim of adverse possession founded on the Limitation of Actions Act

Reasoning

The court recited sections 24(a) and 26(1) of the Land Registration Act on the primacy of title, but held the question was whether the registered owner held a good title in light of the plaintiff's adverse possession claim. It applied the principles requiring dispossession or discontinuance of possession by the title holder for the statutory period, which was proved against the deceased proprietor's estate.

p. 2
03

Whether the deceased held the land in trust for the plaintiff

Holding

Not determined in the final orders; the declaration of trust and extinction of title sought were not granted

Reasoning

Although the plaintiff pleaded trust alongside adverse possession and sought declarations that the deceased held the land in trust and that his proprietary rights were extinct, the court's final orders granted only the adverse possession reliefs. The trust claim was neither expressly adjudicated nor included in the dispositive orders, and the court made no orders as to costs.

p. 1

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation or illegality
  • To acquire title by adverse possession the claimant must prove possession that is nec vi, nec clam, nec precario for the statutory period of 12 years
  • Where a claimant buys land and takes possession but through mistake obtains title to a different parcel, continuous exclusive possession exceeding 12 years establishes title by adverse possession

Court orders

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  1. 1.A declaration that the applicant is entitled to land parcel No. Kakamega/Bushu/489 measuring approximately 11.79 acres or thereabouts by virtue of adverse possession
  2. 2.A declaration that the applicant should be registered as the sole proprietor of land parcel No. Kakamega/Bushu/489 instead of the deceased
  3. 3.A declaration that Kole Inzaniaji's registration as sole proprietor be cancelled and the respondents, as administrators of the deceased's estate, transfer the land to the applicant within 90 days, and in default the Executive Officer of the court to sign all relevant transfer documents
  4. 4.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)(a) and (b)
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 38

Cases cited (5)

  • Elijah Makeri Nyangw'ra -vs- Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi v Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu v Njuguna
    (1983) KLR 172
  • Francis Gicharu Kariri - v- Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire -v- Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act; claim founded on adverse possession under section 38 of the Limitation of Actions Act (Cap 22)

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, "Reuben Kotwa Meda Alais v Nora Kole & another [2021] KEELC 3607 (KLR)", Case Analysis (2021). ELC Case No. 118 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3607/eng@2021-04-21

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