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ELCAllowedNot stated in the judgment as provided· [2022] KEELC 599 (KLR)

Zamaladi Kafuko Yusuf & 8 others v Joyce Mbuya Oruko [2022] KEELC 599 (KLR)

Environment and Land Court
22 March 2022
AOAntony Ombwayo
1,094 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kisumu court gave a family ownership of land they had lived on openly for over 12 years, even though it was registered to someone else.

What this practically means

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Executive summary

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Nine plaintiffs, being the children, grandchildren and wives of the children of the late Ouko Okulo, sued Joyce Mbuya Oruko seeking a declaration that they had acquired prescriptive rights by adverse possession over land parcel KISUMU/NYALENDA 'B'/922 (0.39HA). They pleaded that the land was ancestral land registered in the name of Michael Oruko Okulo in trust for his younger brother Ouko Okulo during the adjudication process; that Ouko Okulo died on 26th February 2009 leaving his family living on the land; that they had occupied it openly, exclusively and without interruption for more than 12 years since birth and marriage; and that the land came to be registered in the respondent's name in 2014 through a continuing trust or fraudulent clandestine moves, the respondent having her own separate land. The respondent was served but did not file a replying affidavit or appear. The plaintiffs testified through James Okullo Ouko. Antony Ombwayo J found the claim proved on a balance of probabilities and, on 22nd March 2022, declared the plaintiffs to have acquired prescriptive rights over the parcel by adverse possession, ordered the defendant to sign transfer and consent to transfer forms in their favour, with the Deputy Registrar of the Environment and Land Court mandated to sign on her failure to do so, and awarded costs of the suit to the plaintiffs. The judgment was delivered electronically pursuant to COVID-19 court operations directions.

Key legal issues

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01

Whether the plaintiffs proved adverse possession

Holding

The court found the plaintiffs proved their case on a balance of probabilities and declared they had acquired prescriptive rights over the suit parcel.

Reasoning

The plaintiffs testified through James Okullo Ouko that they are the children, grandchildren and wives of the children of the late Ouko Okulo, who occupied the land as the registered owner's younger brother. They had lived on the land for more than 12 years since birth and marriage, using it openly, exclusively and without interruption. The defendant was served but filed no replying affidavit and led no evidence, so the plaintiffs' uncontroverted evidence stood unrebutted.

p. 2

Legal principles established

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    Court orders

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    1. 1.The plaintiffs be and are hereby declared to have acquired prescriptive rights over parcel of land number KISUMU/NYALENDA 'B'/922 measuring 0.39HA or thereabout by way of adverse possession
    2. 2.The defendant is ordered to sign transfer and consent to transfer forms in favour of the plaintiffs, failing which the Deputy Registrar of the Environment and Land Court be mandated to sign them
    3. 3.Costs of the suit to the plaintiffs
    Jurisdiction invoked
    Original civil jurisdiction of the Environment and Land Court (claim for adverse possession over land parcel KISUMU/NYALENDA 'B'/922)

    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, "Zamaladi Kafuko Yusuf & 8 others v Joyce Mbuya Oruko [2022] KEELC 599 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/599/eng@2022-03-22

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