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ELCPartially AllowedOriginating Summons filed 11th December 2017 (Bungoma High Court)· [2021] KEELC 4621 (KLR)

Martin Lusweti Wafula v John Wekesa Sipenja & another [2021] KEELC 4621 (KLR)

High Court of Kenya
21 January 2021
5,291 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Bungoma court handed a farmer 9 acres of land because the registered owners waited too long to evict him.

What this practically means

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Executive summary

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The plaintiff, Martin Lusweti Wafula, filed an Originating Summons on 11th December 2017 claiming that he had acquired 9 acres comprised in land parcels KIMILILI/KIBINGEI/5357 and 5358 (subdivisions of the original parcel 2633) by adverse possession, having occupied the land since 1982, and sought declarations that the defendants' titles were extinguished and that he be registered as proprietor. The defendants, brothers registered as proprietors in 2016, denied the claim, asserting that their late father Joseph Wechuli Silenge had purchased the land from the plaintiff's grandfather, obtained a Land Disputes Tribunal award in 1997 adopted by the Kimilili court, and been registered as proprietor, with the land later passing to them by transmission. The court held that time for adverse possession could not run against the plaintiff's father while the land stood registered in KANISIO's name, but began to run from 28th November 1998 when Silenge was registered following the court-ordered transfer. Neither Silenge nor the defendants ever sued the plaintiff or effectually re-entered; the 2014 burial injunction came too late, the 12-year period having elapsed, and the defendants' 2016 registration was subject to the plaintiff's overriding interest under Section 28(h) of the Land Registration Act. Judgment was entered for the plaintiff: adverse possession of the two parcels declared, the defendants' titles extinguished, transfer documents to be executed within 30 days with the Deputy Registrar empowered to execute in default, and costs to the plaintiff. The court also confirmed the suit was not sub-judice, the earlier case having been dismissed for want of prosecution.

Key legal issues

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01

When time for adverse possession began to run

Holding

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.

Reasoning

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.

p. 6
02

Whether the plaintiff's possession met the requirements of adverse possession

Holding

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.

Reasoning

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.

p. 6
03

Whether the suit was sub-judice given Bungoma High Court Civil Case No 38 of 2010

Holding

No. That case was dismissed for want of prosecution, so the sub-judice rule was not violated.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.An order that the plaintiff has acquired by way of adverse possession the land parcels NO KIMILILI/KIBINGEI/5358 and 5357
  2. 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. 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. 4.In default, the Deputy Registrar shall be at liberty to execute such documents on behalf of the defendants
  5. 5.The defendants shall meet the costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Registered Land Act (Cap 300) (repealed)Sections 33, 35(2), 37(1)
  • Land Registration ActSections 28(h), 35(2)
  • Land Disputes Tribunal Act (repealed)Section 8(1)
  • Civil Procedure RulesSection 6 (sub-judice rule)

Cases cited (8)

  • TITUS KASUVE .V. MWAANI INVESTMENT LTD
    C.A Civil Appeal No 35 of 2002 (2004 1 KLR 184)
  • WANJE .V. SAIKWA (NO 2)
    1984 KLR 284
  • GITHU .V. NDEETE
    1984 K.R 776
  • KIMANI RUCHINE & ANOTHER .V. SWIFT RUTHERFORD & COMPANY LTD
    1976-80 1 KLR 1500 (1980 KLR 10)
  • GRACE WAIRIMU SOROMA .V. CHAKA LTD & OTHERS
    2017 eKLR
  • KWEYU .V. OMUTO
    1990 KLR 709
  • SISTO WAMBUGU .V. KAMAU NJUGUNA
    C.A Civil Appeal No of 1982 [1983 eKLR]
  • LITTLEDALE .V. LIVERPOOL COLLEGE
    [1900 1 CH. 19]
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

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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, "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.