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ELCDismissedKisumu ELC No. 530 of 2015 (OS) (Consolidated)· [2022] KEELC 485 (KLR)

Doris Atieno Onjala & another v Silfanus Osika Obongo & another [2022] KEELC 485 (KLR)

Environment and Land Court
31 March 2022
3,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a 21-year adverse possession claim because the land was public land when the clock should have started ticking.

What this practically means

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Executive summary

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Two consolidated originating summonses (deemed plaints), commenced in 2012 and later consolidated under Kisumu ELC No. 530 of 2015, were brought by the late Rev. Simeon Onjala Odak (substituted by Doris Atieno Onjala and Joseph Oginga Onjala) against the registered proprietors of parcels Kisumu/Fort Ternan/20 and /21 and their transferee, George Onyango Owaga. The plaintiffs claimed 2 acres from each parcel, identified in mutation forms dated 2nd February 1990 as parcels 068/482 and 068/484, by adverse possession, alleging they paid the sellers' Settlement Fund Trustees loan as consideration, took possession in 1990, planted sugarcane, and occupied openly and exclusively for over 21 years. They sought registration as proprietors, cancellation of the defendants' titles and nullification of subsequent subdivisions. The court traced the registers: parcel 20 remained registered in the Settlement Fund Trustees until 2007 and parcel 21 until 2010. The court found as fact that the deceased plaintiff paid the loan and took possession in 1990, and that the sellers agreed this would form consideration for the sale, but held that the claim was pleaded in adverse possession, not specific performance. Critically, Section 41 of the Limitation of Actions Act excludes public land, so the 12-year limitation period began only when the parcels became private land in 2007 and 2010; by filing in 2012 and 2015, 12 years had not lapsed. The suits were dismissed with costs by Antony Ombwayo J on 31st March 2022.

Key legal issues

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01

Whether the plaintiffs proved adverse possession of the suit portions for the requisite 12-year period

Holding

The plaintiffs proved exclusive, open and peaceful possession, but the limitation period could not run against the Settlement Fund Trustees while the parcels remained public land

Reasoning

The court traced the registers: parcel 20 was registered to Settlement Fund Trustees on 13/6/1980 and only became private land in 2007, while parcel 21 was transferred to a private owner on 4/10/2010. Section 41 of the Limitation of Actions Act excludes Government and public land from the Act, so the 12-year period under Section 7 only began running when the parcels became private land in 2007 and 2010. The suits were filed in 2012 and 2015, before 12 years had elapsed, so adverse possession was not established.

p. 5
02

Whether the deceased plaintiff paid the purchase price and took possession under an agreement with the original registered proprietors

Holding

The court found as a fact that the deceased plaintiff paid the Settlement Fund Trustees loan on behalf of the sellers and took possession in 1990, the payment forming consideration for the sale

Reasoning

PW1 and PW2 testified that the purchase price was paid and sugarcane grown on the land; DW2 (Gradius Odhiambo Awino) admitted Rev. Onjala planted sugarcane on the land for 13 years. The court found the sellers were unable to repay the Settlement Fund Trustees loan, the plaintiff paid it, and the parties agreed the payment would be consideration for the sale of portions. However, since the claim was pleaded in adverse possession rather than specific performance, these findings did not avail the plaintiffs.

p. 4

Legal principles established

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  • Adverse possession cannot run against public land, including land registered in the Settlement Fund Trustees, by virtue of Section 41 of the Limitation of Actions Act
  • At the expiry of 12 years of adverse possession, the title of the registered proprietor is extinguished in favour of the adverse possessor
  • A claim based on adverse possession is distinct from a claim for specific performance of a sale agreement and different principles apply

Court orders

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  1. 1.The plaintiffs' suits are dismissed
  2. 2.Costs awarded to the defendants

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 13(1)-(3)
  • Limitation of Actions Act (Cap 22)Section 16
  • Limitation of Actions Act (Cap 22)Section 17
  • Limitation of Actions Act (Cap 22)Section 38(1) and (2)
  • Limitation of Actions Act (Cap 22)Section 41(a)(i)-(vi)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act, Section 38 (claim for registration as proprietor by adverse possession)

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, "Doris Atieno Onjala & another v Silfanus Osika Obongo & another [2022] KEELC 485 (KLR)", Case Analysis (2022). Kisumu ELC No. 530 of 2015 (OS) (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/485/eng@2022-03-31

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