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ELCAllowedOriginating Summons dated 8/4/2021 (number not stated in judgment)· [2022] KEELC 638 (KLR)

Silpher Achieng v Fredrick Ochieng Juma & another [2022] KEELC 638 (KLR)

Environment and Land Court
23 March 2022
AOANTONY OMBWAYO
1,433 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kisumu court gave an occupier ownership of land she had lived on and farmed openly for over 12 years, cancelling the registered owner's new titles.

What this practically means

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Executive summary

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The applicant filed an Originating Summons dated 8 April 2021 claiming a 0.09 Ha portion of land originally comprised in Kisumu/Korando/801 and Kisumu/Korando/802 by adverse possession. She deponed that she bought a portion from James Ongonga Ogalo (deceased) in 2005 for Kshs. 70,000/=, took possession, built a house in 2005, cultivated vegetables, and in 2008 entered a further written agreement to purchase another portion from the same vendor as administrator of the estate of Luke Ogalo Ondu. She later sold part of the land she occupied to Elizabeth Atieno Ayuo in 2009. The respondents took no steps despite service; no replying affidavit was filed. In 2019 the applicant and Ayuo received demand letters from the 1st Respondent's advocates, who had obtained letters of administration, become registered owner of Kisumu/Korando/801 by transmission, subdivided it into Kisumu/Korando/5744 and 5745, and created an access road cutting through the applicant's dwelling houses. The applicant testified and called Ayuo. The court found her possession open, notorious, continuous, exclusive and actual for more than 12 years, satisfying the balance of probabilities. The court declared an overriding interest under Section 28(h) of the Land Registration Act, declared the applicant entitled to the occupied portions, declared the respondents' interest extinguished and held in trust for her, directed the Land Registrar to revoke and cancel the titles to Kisumu/Korando/5744 and 5745 and effect a fresh subdivision issuing title to the applicant, and awarded costs to the applicant.

Key legal issues

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01

Whether the applicant proved adverse possession for over 12 years

Holding

The applicant proved open, continuous, exclusive and actual possession of the suit property for more than 12 years on a balance of probabilities, conferring an overriding interest and extinguishing the respondents' interest.

Reasoning

The applicant testified and called a witness. The court found she entered the land in 2005, built a house in 2005, grew vegetables and even sold a portion to a third party, all without interruption until demand letters in 2019. Possession was thus open, notorious, continuous, exclusive and actual for over 12 years, satisfying the balance of probabilities standard and grounding entitlement under Section 28(h) of the Land Registration Act.

p. 3

Legal principles established

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  • Adverse possession is established where possession is open, notorious, continuous, exclusive and actual for a period exceeding 12 years.

Court orders

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  1. 1.Declaration that the Applicant had an overriding interest under Section 28(h) of the Land Registration Act of the portion within Kisumu/Korando/801 and Kisumu/Korando/802
  2. 2.Declaration that the Applicant is entitled to the portions she occupies measuring approximately 0.09 Ha by reason of adverse possession exceeding 12 years
  3. 3.Declaration that the Respondents' proprietary interest in the portions has been extinguished and that they hold title in trust for the Applicant
  4. 4.Order directing the Land Registrar to revoke and cancel the title deeds for Kisumu/Korando/5744 and Kisumu/Korando/5745 and to carry out a fresh subdivision and issue titles to the Applicant for the 0.09 Ha portion
  5. 5.Costs of the Summons to the applicant

Authorities

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Legislation

  • Land Registration ActSection 28(h)
Jurisdiction invoked
Original jurisdiction under the Land Registration Act and Limitation of Actions Act via Originating Summons for 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, "Silpher Achieng v Fredrick Ochieng Juma & another [2022] KEELC 638 (KLR)", Case Analysis (2022). Originating Summons dated 8/4/2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/638/eng@2022-03-23

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