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ELCAllowedOriginating Summons dated 9th March 2017 (Bungoma)· [2021] KEELC 4294 (KLR)

Julius Watanga Wataka v Thomas Namaswa Nyongesa (Sued as Legal representative of Estate of William Wanyonyi Chaami) [2021] KEELC 4294 (KLR)

Environment and Land Court of Kenya
23 February 2021
2,518 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that someone who pays for land and occupies it openly for over 12 years can become its legal owner, even against a deceased owner's estate.

What this practically means

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Executive summary

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Julius Watanga Wataka sued Thomas Namaswa Nyongesa, the legal representative of the estate of William Wanyonyi Chaami (registered proprietor of land parcel East Bukusu/South Nalondo/1399), by Originating Summons dated 9th March 2017 seeking a declaration of adverse possession over 4.6 Hectares, cancellation of the registered proprietor's name, and registration of the plaintiff in its place. The plaintiff's case was that in 1983 he purchased the 4.6 Hectares from Henry Simiyu Chaami, paid Kshs. 26,000/=, and immediately took open, exclusive and peaceful possession, constructing houses and cultivating crops for over 34 years. A suit by the registered proprietor (Bungoma H.C.C.C No. 52 of 2005) was withdrawn by consent without disturbing his occupation. The defendant, though twice served, did not attend trial; his replying affidavit denying occupation since 1983 and questioning the grant was untested. The court applied Section 38(1) of the Limitation of Actions Act and authorities including Kasuve v Mwaani, Kimani Ruchine, Githu v Ndeete, Public Trustee v Wanduru and Peter Mbiri Michuki, holding that the plaintiff's occupation was adverse (nec vi, nec clam, nec precario), that limitation ran against the vendor from payment and possession in 1983, that the proprietor's interest was extinguished by 1995, and that the 2005 suit neither interrupted possession (being late and not filed by the owner) nor that a claim may lie against a deceased's estate. Judgment was entered for the plaintiff: a declaration of ownership by adverse possession, cancellation of the registered proprietor's name, issuance of a new title to the plaintiff, and costs of the suit to the plaintiff.

Key legal issues

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01

Whether the plaintiff proved adverse possession of the 4.6 Hectares since 1983

Holding

Yes - the plaintiff's uncontroverted evidence established exclusive, open, peaceful and continuous occupation for 34 years, extinguishing the registered proprietor's interest by 1995

Reasoning

The plaintiff purchased 4.6 Hectares from Henry Simiyu Chaami on 12th May 1983, paid the purchase price, and took possession, erecting houses and cultivating crops. The defendant did not attend trial, so the evidence was unchallenged. Applying Kasuve v Mwaani and Kimani Ruchine, the occupation was open, exclusive and uninterrupted for well over the 12-year limitation period, and by 1995 the proprietor's interest was extinguished.

p. 3
02

Whether the filing of Bungoma H.C.C.C No. 52 of 2005 interrupted adverse possession

Holding

No - that suit was filed after the plaintiff's title had already accrued and, in any event, was not filed by the owner

Reasoning

By the time the 2005 suit was filed, the plaintiff had already occupied the land for over 20 years and title had vested. Additionally, the court noted the suit was filed by the plaintiff himself, not the proprietor, and it was withdrawn by consent with the plaintiff allowed to remain in occupation. Following Githu v Ndeete, only a suit by the owner, effective entry, or admission interrupts adverse possession.

p. 3
03

Whether a purchaser in possession may claim adverse possession against the vendor's estate

Holding

Yes - having paid the purchase price and taken possession in 1983, the plaintiff held an equitable beneficial interest and limitation ran in his favour from entry

Reasoning

Relying on Public Trustee v Wanduru and Peter Mbiri Michuki v Samuel Mugo Michuki, the court held that a purchaser who has paid the purchase price and taken possession acquires an equitable beneficial interest, with the vendor becoming a trustee; the limitation period runs against the vendor from the date of entry in 1983.

p. 3
04

Whether adverse possession may be claimed against a deceased registered proprietor's estate

Holding

Yes - the grant issued to the defendant was not interim, and adverse possession may be asserted against a deceased person's estate

Reasoning

The defendant argued the grant in Bungoma CM Succession Cause No. 441 of 2016 was interim and could not sustain the suit. The court found the grant was a full Grant of Letters of Administration and, citing Karuntimi Raiji v M'Mkinya M'Itunga, held that adverse possession claims lie against a deceased person's estate.

p. 3

Legal principles established

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  • A claimant entitled to land by adverse possession must prove exclusive, open possession as of right without interruption for 12 years
  • Adverse possession can run against the estate of a deceased registered proprietor
  • A purchaser in possession who has paid the purchase price is a person in whose favour limitation runs against the vendor
  • Adverse possession is interrupted only by the owner filing suit, making effective entry, or the plaintiff admitting the owner's title

Court orders

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  1. 1.An order that the plaintiff has acquired ownership of 4.6 Hectares out of land parcel NO EAST BUKUSU/SOUTH NALONDO/1399 by way of adverse possession
  2. 2.A declaration that the interest of the registered proprietor WILLIAM WANYONYI in the land parcel NO EAST BUKUSU/SOUTH NALONDO/1399 has been extinguished by operation of the law
  3. 3.The LAND REGISTRAR BUNGOMA shall cancel the name of WILLIAM WANYONYI from the register of land parcel NO EAST BUKUSU/SOUTH NALONDO/1399 and issue a new title in the names of JULIUS WATANGA WATAKA
  4. 4.The plaintiff shall have costs of the suit

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)Sections 7, 17 and 38(1)
  • Constitution of KenyaArticle 159(2)

Cases cited (7)

  • KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS
    2004 1 KLR 184
  • KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFORD & CO LTD
    1980 KLR 10
  • ROBERT SHUME & OTHERS .V. SAMSON KAZUNGU KALAMA
    2015 eKLR
  • KARUNTIMI RAIJI .V. M'MKINYA M'ITUNGA
    2013 eKLR
  • GITHU .V. NDEETE
    1984 KLR 776
  • PUBLIC TRUSTEE .V. WANDURU
    1984 K.R 314
  • PETER MBIRI MICHUKI .V. SAMUEL MUGO MICHUKI
    2014 eKLR
Jurisdiction invoked
Original jurisdiction under Section 38(1) of the Limitation of Actions Act (Cap 22, Laws of Kenya) for an order that a claimant in adverse possession be registered as proprietor

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, "Julius Watanga Wataka v Thomas Namaswa Nyongesa (Sued as Legal representative of Estate of William Wanyonyi Chaami) [2021] KEELC 4294 (KLR)", Case Analysis (2021). Originating Summons dated 9th March 2017 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4294/eng@2021-02-23

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