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ELCPartially AllowedELC Case No. 501 of 2014· [2021] KEELC 4215 (KLR)

Mary Khasona Shibiro v Boaz Minyata & another [2021] KEELC 4215 (KLR)

Environment and Land Court
23 February 2021
NMN.A. Matheka
2,955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, Mary Khasona Shibiro, claimed title to land parcel Tiriki/Shamakhokho/1103 (a subdivision of the original Tiriki/Shamakhokho/198) by adverse possession. She married the grandson of the original owner, Shitoko Livoywa, and occupied the portion in dispute from 1978. Unknown to her, the 1st defendant (her father-in-law, who died during the suit) took out succession in Kakamega High Court Succession Cause No. 589 of 1995, had the land transmitted to himself and others on 16th December 1996, and following a 1999 partition had the plaintiff's portion, parcel 1103, registered in his name. He then sold it to the 2nd defendant for Ksh. 160,000, who obtained registration and a title deed on 2nd June 2009 and sought to evict the plaintiff. The 2nd defendant defended as a bona fide purchaser for value without notice, relying on the indefeasibility of title under the Land Registration Act and on earlier tribunal decisions adopted as court orders. The court held that the Hamisi District Land Disputes Tribunal and the Western Provincial Land Disputes Appeals Committee had exceeded their jurisdiction by determining ownership of registered land, so their decisions could not stand. Applying the adverse possession principles in Wambugu v Njuguna and Kimani Ruchire, the court found the plaintiff in exclusive, continuous, peaceful and open possession for over 12 years. It further found a constructive trust between the plaintiff and the 1st defendant and rejected the bona fide purchaser claim since the 2nd defendant knew of the plaintiff's occupation. The court declared the plaintiff the owner of parcel 1103 and ordered the 2nd defendant to transfer it to her within 90 days, failing which the Deputy Registrar would sign the transfer documents. Costs were not awarded.

Key legal issues

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01

Whether the plaintiff acquired title to Tiriki/Shamakhokho/1103 by adverse possession

Holding

Yes - the plaintiff proved exclusive, continuous and uninterrupted possession, occupation and open use of the suit land for more than 12 years, defeating the 2nd defendant's title

Reasoning

Applying the Wambugu v Njuguna and Kimani Ruchire principles, the court found the plaintiff, who had established her home on the land since 1978 as wife of the original owner's grandson, had been in possession nec vi, nec clam, nec precario for over 30 years. The 2nd defendant was aware of her occupation yet purchased the land. The court found the claim proved on a balance of probabilities.

p. 4
02

Whether the Land Disputes Tribunals that earlier determined the plaintiff's claim had jurisdiction

Holding

No - the tribunals exceeded their jurisdiction by dealing with title to property, and their decisions could not stand

Reasoning

Section 3 of the Land Disputes Tribunal Act limited tribunals to boundary disputes, claims to occupy or work land, and trespass. Relying on M'Marete v Republic, the court held that a claim to ownership of registered land falls outside that mandate. The tribunals here dealt with title to property and therefore acted in excess of jurisdiction.

p. 3
03

Whether a constructive trust arose between the plaintiff and the 1st defendant

Holding

Yes - a constructive trust arose as between the plaintiff and the 1st defendant, who secretly obtained succession and registered himself as proprietor

Reasoning

The court expounded the law on trusts per Twalib Hatayan, noting constructive trusts are imposed by operation of law against one who acquires property by wrongdoing, irrespective of intention, to prevent unjust enrichment. Since the 1st defendant secretly took out succession and had the plaintiff's portion registered in his name before selling to the 2nd defendant, the court found a constructive trust arose.

p. 4
04

Whether the 2nd defendant was a bona fide purchaser for value without notice

Holding

No - he was aware the plaintiff had established her home on the land for over 30 years when he purchased

Reasoning

The 2nd defendant claimed he conducted due diligence and found the land free from encumbrances. The court found it strange that he would purchase land when he well knew the plaintiff had lived there for over 30 years; his knowledge of her occupation defeated the bona fide purchaser claim.

p. 4

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject only to challenge on grounds of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • A Land Disputes Tribunal exceeds its jurisdiction when it purports to adjudicate claims to ownership of registered land rather than boundary, occupation or trespass disputes
  • A claimant seeking adverse possession must prove possession that is nec vi, nec clam, nec precario, continuous, and with the owner's actual or constructive knowledge
  • A constructive trust arises in equity against one who acquires property by wrongdoing, without need to prove intention, to guard against unjust enrichment
  • Adverse possession requires dispossession of the proprietor or discontinuance of his possession for the statutory period of twelve years

Court orders

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  1. 1.The plaintiff be declared the owner of land parcel No. Tiriki/Shamakhokho/1103 which she occupies, by virtue of adverse possession
  2. 2.The 2nd defendant be ordered to transfer the suit land to the plaintiff within 90 days from the date of the judgment, and in default the Deputy Registrar to sign the transfer documents
  3. 3.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 26(1)
  • Land Disputes Tribunal Act (now repealed)Section 3
  • Limitation of Actions Actadverse possession provisions
  • Trustee Actdefinitions of trust and trustee
  • Registered Land Actrelevant provisions on proprietor's rights (as invoked by the 2nd defendant)

Cases cited (7)

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Gerald Muriithi vs Wamugunda Muriuki & Another
    (2010) eKLR
  • Wambugu vs Njuguna
    (1983) KLR page 172
  • Francis Gicharu Kariri vs Peter Njoroge Mairu
    Civil Appeal No. 293 of 2002 (Nairobi)
  • Kimani Ruchire vs Swift Rutherfords & Co. Ltd.
    (1980) KLR 10
  • M'Marete v Republic & 3 others
    Civil Appeal 259 of 2000 (2004) eKLR
  • Twalib Hatayan Twalib Hatayan & Another vs Said Saggar Ahmed Al-Heidy & Others
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (claim for adverse possession over registered land)

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, "Mary Khasona Shibiro v Boaz Minyata & another [2021] KEELC 4215 (KLR)", Case Analysis (2021). ELC Case No. 501 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4215/eng@2021-02-23

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