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ELCDismissedBungoma High Court (ELC) Civil Suit, plaint dated 14th July 2003· [2021] KEELC 4703 (KLR)

John Wefwafwa Mbakaya v Moses Wasike Wabomba (Substituted by Judith Muyoka Wabomba) (Environment & Land Case 18 of 2010) [2021] KEELC 4703 (KLR)

Environment and Land Court (High Court of Kenya), Bungoma
18 January 2021
5,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Bungoma court ruled that occupying land openly for over 12 years can legally override a title deed through adverse possession.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel BOKOLI/MUKUYUNI/1128 since 19th March 2003 by transmission from his father, sued for the defendant's eviction, alleging trespass from January 1974. The defendant (originally Moses Wasike Wabomba, substituted after death by his widow Judith Muyoka Wabomba) denied trespass, claiming she purchased a portion in 1962 from Johnstone Wefwafwa under a written sale agreement, and raised a limitation defence under Section 7 of the Limitation of Actions Act. A preliminary objection on limitation had earlier been dismissed by W. Karanja J on 26th September 2008 because of disputed issues. Boaz N. Olao J held that the 1962 sale agreement was null and void since Johnstone Wefwafwa had no interest in land first registered in the plaintiff's father's name in 1964; enforcing it would be enforcing an illegality. On limitation, the court held that continuing trespass is not defeated by Section 7 so long as the offending structures remain. However, applying the jointly framed agreed issues and principles of adverse possession, the court found the defendant had occupied a portion - admitted on oath by the plaintiff to measure 1¼ acres - peacefully, exclusively and without interruption since 1962 (or at latest 1974), far exceeding the statutory 12 years. The plaintiff's title to that portion was extinguished and he held it in trust for the defendant, whose rights were protected by Section 38 of the Limitation of Actions Act and Section 28(h) of the Land Registration Act. The plaintiff's suit was dismissed; the defendant was declared entitled to 1¼ acres by adverse possession and directed to be registered within 45 days, with the Deputy Registrar to execute documents in default. Each party was ordered to bear their own costs.

Key legal issues

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01

Validity of the 1962 sale agreement

Holding

The agreement between Johnstone Wefwafwa and the defendant was null and void because the seller had no interest in the suit land, which was first registered in the plaintiff's father's name in 1964

Reasoning

The Green Card shows the land was first registered in the plaintiff's father's name on 31st December 1964; Johnstone Wefwafwa never had any registrable interest and could transfer nothing in 1962. Enforcing the agreement would amount to enforcing an illegality, which courts will not countenance. The Court relied on the principle that no title passes from one without title to give.

p. 3
02

Whether the suit is barred by limitation (Section 7, Limitation of Actions Act)

Holding

The claim as framed as continuing trespass was not statute-barred, but the defendant's rights were ultimately extinguished by adverse possession

Reasoning

The court held that where structures remain on land the trespass continues and gives rise to successive causes of action, so limitation does not defeat a continuing trespass claim. However, since the defendant had occupied the portion for well over 12 years without interruption, the plaintiff's rights over that portion were extinguished and the adverse possessor's rights crystallized under Section 38 of the Limitation of Actions Act and Section 28(h) of the Land Registration Act.

p. 3
03

Adverse possession

Holding

The defendant acquired 1¼ acres of the suit land by adverse possession, time running from registration of the land on 31st December 1964 (or alternatively 1974)

Reasoning

Occupation was exclusive, peaceful and uninterrupted; the plaintiff's father never sued and no effective entry interrupted possession. The plaintiff admitted on oath the defendant occupies 1¼ acres. Whether computed from 1964 or 1974, occupation far exceeded the 12-year statutory period, extinguishing the plaintiff's title to that portion.

p. 6
04

Date of entry

Holding

The defendant entered the land in 1962, not 1974 as the plaintiff claimed, despite the illegality of the sale agreement

Reasoning

The court found it highly unlikely that a purchaser of rural land would wait 12 years before occupying it. Adverse possession is a question of fact, and the defendant's family had occupied the portion as their only asset and source of livelihood.

p. 6

Legal principles established

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  • A person with no interest in land cannot pass title to a purchaser; a transaction by a non-owner is void ab initio
  • Trespass by placing structures on land is a continuing trespass giving rise to fresh causes of action so long as it lasts, and is not defeated by limitation while it continues
  • Adverse possession is a question of fact based on actual, exclusive, peaceful and uninterrupted occupation; a registered owner whose rights are extinguished holds title in trust for the adverse possessor
  • A court may determine an unpleaded issue where it appears from the conduct of the trial that the issue was left to the court, as with the jointly framed agreed issues

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.The defendant is entitled to 1¼ acres out of land parcel BOKOLI/MUKUYUNI/1128 having acquired the same by adverse possession
  3. 3.The plaintiff shall execute all necessary documents and the Bungoma County Land Registrar and Surveyor shall register a portion measuring 1¼ acres out of BOKOLI/MUKUYUNI/1128 in the name of Judith Muyoka Wabomba within 45 days from the date of the judgment
  4. 4.In default, the Deputy Registrar shall execute all necessary documents on behalf of the plaintiff to facilitate such registration
  5. 5.Each party shall meet their own costs

Authorities

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Legislation

  • Land Registration ActSections 25 and 26; Section 28(h)
  • Registered Land Act (repealed)Sections 27 and 28; Section 30(f)
  • Limitation of Actions ActSection 7; Section 38
  • Civil Procedure RulesOrder 15 Rule 2; Order XIV; Order XX rule 4

Cases cited (15)

  • JANE GACHOKI GATHECHA .V. PRISCILLA NYAWIRA GITUNGU & ANOTHER
    C.A Civil Appeal Nos 343 and 345 of 2002 [2008 KLR]
  • MISTRY AMAR SINGH .V. KULUBYA
    1963 E.A 408
  • KENYA CIVIL AVIATION AUTHORITY .V. HONOURABLE W K & OTHERS
    2019 eKLR
  • NELSON MACHOKA KERARO .V. LAND REGISTRAR KISII & OTHERS
    2019 eKLR
  • PETER MWANGI KABUI .V. RURAL ELECTRIFICATION AUTHORITY
    2016 eKLR
  • MUKISA BISCUIT MANUFACTURING CO LTD .V. WEST END DISTRIBUTORS LTD
    1969 E.A 696
  • ISAACK BEN MULWA .V. JONATHAN MUTUNGA MWEKE
    2016 eKLR
  • ODD JOBS .V. MUBIA
    1974 E.A 476
  • NGUGI TICHA .V. KIRITU TICHA & OTHERS
    C.A Civil Appeal No 40 of 2004 [2014 eKLR]
  • VYAS INDUSTRIES .V. DIOCESE OF MERU
    1982 KLR 114
  • GALAXY PAINTS COMPANY LTD .V. FALCON GUARDS LTD
    C.A Civil Appeal No 219 of 1998 [2000 eKLR]
  • MTANA LEWA .V. KAHINDI NGALA MWAGANDI
    C.A Civil Appeal No 56 of 2014 [2015 eKLR]
  • MWEU .V. KIU RANCHING & FARMING CO-OPERATIVE SOCIETY LTD
    1985 KLR 430
  • GITHU .V. NDEETE
    1984 KLR 776
  • MACFOY .V. UNITED AFRICA CO LTD
    1961 3 ALL E.R 1169
Jurisdiction invoked
Original civil jurisdiction of the High Court/Environment and Land Court over land parcel BOKOLI/MUKUYUNI/1128; jurisdiction over the matter was common ground among the agreed issues

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 Wefwafwa Mbakaya v Moses Wasike Wabomba (Substituted by Judith Muyoka Wabomba) (Environment & Land Case 18 of 2010) [2021] KEELC 4703 (KLR)", Case Analysis (2021). Bungoma High Court (ELC) Civil Suit, plaint dated 14th July 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4703/eng@2021-01-18

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