Martin Lusweti Wafula v John Wekesa Sipenja & another [2021] KEELC 4621 (KLR)
The bottom line
#A Bungoma court handed a farmer 9 acres of land because the registered owners waited too long to evict him.
What this practically means
#Executive summary
#Key legal issues
#When time for adverse possession began to run
Time ran from 28th November 1998, when Joseph Wechuli Silenge was registered as proprietor of the original parcel following the Tribunal award and court-ordered transfer, and not from 1997 while the land was registered in the plaintiff's father's name.
The plaintiff occupied the land with his father's permission while parcel 2633 was registered in KANISIO's name, so his possession was not hostile. Once the parcel was registered in Silenge's name on 28th November 1998 pursuant to the Kimilili court order adopted from the Land Disputes Tribunal award, the plaintiff could assert a hostile title against the new registered proprietor, and the 12-year period began to run from that date.
Whether the plaintiff's possession met the requirements of adverse possession
Yes. The plaintiff and his family occupied the 9 acres openly, peacefully and continuously without the proprietor taking any step to evict them or assert ownership, exceeding 12 years.
There was no evidence that Silenge or the defendants ever filed suit against the plaintiff or effected re-entry after the 1998 registration. The prior Tribunal case and eviction orders involved the fathers, not the plaintiff. The 2014 burial injunction came too late, being 16 years into the occupation. The defendants' 2016 registration was subject to the plaintiff's overriding interest under Section 28(h) of the Land Registration Act.
Whether the suit was sub-judice given Bungoma High Court Civil Case No 38 of 2010
No. That case was dismissed for want of prosecution, so the sub-judice rule was not violated.
The plaintiff deponed that the earlier suit was dismissed for want of prosecution; the 1st defendant, though a plaintiff in that case, did not know its outcome. The court concluded the case was dismissed, clarified the record to allay sub-judice fears, and declined the plaintiff's request for consolidation as unnecessary.
Legal principles established
#- A claimant in adverse possession must prove exclusive, open, peaceful and uninterrupted possession for 12 years, without force, secrecy or permission, either after dispossessing the owner or on the owner's discontinuation of possession.
- Time for adverse possession runs against a registered proprietor from whom the claimant can assert a hostile title; where the claimant occupies with the permission of the registered owner (his father), no hostile claim exists.
- A change of ownership of land occupied by a person in adverse possession does not interrupt that adverse possession, and the new registration is subject to the overriding interest under Section 28(h) of the Land Registration Act.
- A 2014 injunction restraining burial on the land came too late to interrupt adverse possession, as the 12-year statutory period had already run and the paper owner's rights had been extinguished.
Court orders
#- 1.An order that the plaintiff has acquired by way of adverse possession the land parcels NO KIMILILI/KIBINGEI/5358 and 5357
- 2.An order that the defendants' titles to the land parcels NO KIMILILI/KIBINGEI/5358 and 5357 have been extinguished by operation of the law
- 3.The defendants shall within 30 days of the Judgment execute all relevant documents to facilitate the transfer of the land parcels NO KIMILILI/KIBINGEI/5358 and 5357 into the names of the plaintiff
- 4.In default, the Deputy Registrar shall be at liberty to execute such documents on behalf of the defendants
- 5.The defendants shall meet the costs of the suit
- Jurisdiction invoked
- Section 38(1) of the Limitation of Actions Act - claim for declaration of title by adverse possession to land registered under the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Lusweti Wafula v John Wekesa Sipenja & another [2021] KEELC 4621 (KLR)", Case Analysis (2021). Originating Summons filed 11th December 2017 (Bungoma High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4621/eng@2021-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.