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ELCPartially AllowedBungoma High Court Originating Summons dated 30th November 2017 (filed 4th December 2017)· [2021] KEELC 4576 (KLR)

John Barasa Matifari v Simon Wanjala Mabonga substituted with Amos Wandabwa Mabonga [2021] KEELC 4576 (KLR)

Environment and Land Court / High Court of Kenya at Bungoma
28 January 2021
BOBoaz N. Olao
4,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Bungoma court ruled that 22 years of open occupation after a 1973 cash purchase gave the buyer legal ownership of the land, overriding the registered owner's title.

What this practically means

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Executive summary

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The plaintiff, John Barasa Matifari, sued by Originating Summons claiming 9 acres out of parcels East Bukusu/South Nalondo 2862, 2861 and 2863 (sub-divisions of parcel 98) by adverse possession. He averred that his late father purchased the land from Titila Mayuu Mulwoni in 1973, paid the full purchase price, and settled him on the land, but transfer was never effected. The defendant, substituted by his son after death, denied the purchase, contending the plaintiff occupied a small section under licence, that he himself bought a portion from Mulwoni in 1995 and obtained title to parcel 2862 in 2002, and that the suit was res judicata and an abuse of process given prior litigation including Bungoma SP Magistrate's Court Civil Case No 5 of 2005. The court found the plaintiff's occupation since 1973 un-rebutted and held that, as a purchaser in possession after payment of the full purchase price, he was not a licensee and limitation ran from payment; the 12-year period expired by 1985. The defendant's 1995 purchase did not interrupt adverse possession, and he became a trustee of parcel 2862. The plea of res judicata failed because adverse possession was not in issue in the 2005 suit, and such claims lay only in the High Court. The claim was not vague, being distinguishable from the Songoi decision. The court declared the plaintiff entitled to parcel 2862 (6.9 acres) by adverse possession, extinguished the defendant's rights, ordered transfer within 30 days with the Deputy Registrar empowered to execute in default, and awarded costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff's possession was adverse or under licence

Holding

Possession was adverse; the plaintiff entered as purchaser after payment of the full purchase price in 1973 and is not a licensee

Reasoning

The defendant conceded the plaintiff was in occupation by 1995 but characterized it as licensed. The court found the un-rebutted evidence that the plaintiff's father bought 9 acres in 1973 and settled the plaintiff thereon. A purchaser in possession after payment of the full purchase price enjoys equitable and overriding interests, and limitation runs from the date of payment.

p. 4
02

Whether the defendant's 1995 purchase and subsequent litigation interrupted adverse possession

Holding

No; by 1995 the plaintiff had been in occupation for 22 years, the 12-year limitation period lapsed by 1985, and a change of ownership does not interrupt adverse possession

Reasoning

The court applied the principle that a mere change of ownership of land claimed under adverse possession does not interrupt the rights of the adverse possessor. The only interruption possible was by filing suit against the plaintiff or by the plaintiff admitting the owner's title; the suits filed in 1999 and later could not interrupt possession already matured.

p. 4
03

Whether the suit is res judicata

Holding

No; adverse possession was neither raised nor determined in Bungoma SP Magistrate's Court Civil Case No 5 of 2005, and such claims could not be brought in the subordinate court

Reasoning

The reliefs in the 2005 suit were delivery of possession and a permanent injunction over parcel 2862. Res judicata under Section 7 of the Civil Procedure Act requires the matter to have been directly and substantially in issue previously. Further, Section 38(3) of the Limitation of Actions Act vested jurisdiction over adverse possession claims exclusively in the High Court.

p. 4
04

Whether the land claimed is definite and identifiable

Holding

Yes; unlike the Songoi case, the claim here is specific, and the defendant's own pleadings in the 2005 suit identified parcel 2862 as the land the plaintiff occupied

Reasoning

The court distinguished its earlier decision in Abraham Barasa Songoi, holding the pleadings here were not vague and that the defendant's own suit for delivery of parcel 2862 confirmed the plaintiff's occupation of that identifiable parcel, measuring 2.8 hectares (6.9 acres).

p. 3

Legal principles established

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  • A person claiming land registered in the name of another through adverse possession must prove exclusive, open possession without interruption for 12 years
  • A purchaser in possession after paying the full purchase price is not a licensee and limitation runs in his favour from the date of payment
  • A person who purchases land over which another is already in adverse possession becomes a trustee holding the land for the party in possession; a change of ownership does not interrupt adverse possession
  • Res judicata applies only where the matter in issue was directly and substantially in issue in a previous suit

Court orders

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  1. 1.The plaintiff is declared to have become entitled by adverse possession to the land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 measuring 6.9 acres
  2. 2.The defendant's rights in the said land parcel NO EAST BUKUSU/SOUTH NALONDO/2862 are extinguished by operation of the law
  3. 3.The defendant shall within thirty (30) days execute all necessary documents to facilitate transfer of the land parcel to the plaintiff
  4. 4.In default, the Deputy Registrar of this Court shall be at liberty to execute such documents on behalf of the defendant
  5. 5.The plaintiff shall have costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 38(3)
  • Civil Procedure ActSection 7
  • Land Registration ActSection 28(h)
  • Registered Land Act (repealed)Section 30(f)

Cases cited (11)

  • TITUS KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS
    C.A Civil Appeal No 35 of 2002 [2004 eKLR]
  • KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFORD & COMPANY LTD
    1980 KLR 10
  • MTANA LEWA .V. KAHINDI NGALA MWAGANDI
    C.A Civil Appeal No 56 of 2014 [2015 eKLR]
  • ABRAHAM BARASA SONGOI .V. DISMAS WANYAMA MAWANI
    2020 eKLR
  • SISTO WAMBUGU .V. KAMAU NJUGUNA
    1983 eKLR
  • NDIEMA SAMBURI SOTI .V. ELVIS KIMTAI CHEPKESES
    2010 eKLR
  • PUBLIC TRUSTEE .V. WANDURU
    1984 KLR 314
  • PETER MBIRI MICHUKI .V. SAMUEL MUGO MICHUKI
    2014 eKLR
  • GATIMU KUNGURU .V. MUYA GATHANGI
    1976 KLR 53
  • WANAMBUKO NYONGESA MUKETHE .V. PATRICK KITUYI NAMBALE & OTHERS
    2020 eKLR
  • GITHU .V. NDEETE
    1984 KLR 776
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act (jurisdiction of the High Court under Section 38(3))

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, "John Barasa Matifari v Simon Wanjala Mabonga substituted with Amos Wandabwa Mabonga [2021] KEELC 4576 (KLR)", Case Analysis (2021). Bungoma High Court Originating Summons dated 30th November 2017 (filed 4th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4576/eng@2021-01-28

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