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ELCDismissedELC Appeal No. 11 of 2021 (Formerly Kakamega ELCA No. E022 of 2021)· [2022] KEELC 717 (KLR)

Jeremiah Otemo Okonyo v Registered Trustees African Divine Church & James Mulongo Sileka [2022] KEELC 717 (KLR)

Environment and Land Court
24 March 2022
3,400 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 confirmed that 30+ years of church occupation won the land, and the buyer's title was cancelled for skipping due diligence.

What this practically means

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Executive summary

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This is a first appeal from the judgment of S.O. Ongeri (SPM) dated 31 May 2021 in Vihiga SPM's Court ELC Case No. 56 of 2018. The Appellant, who was the plaintiff, had sued for a declaration of trespass, eviction and a permanent injunction over land parcel E/BUNYORE/EBUSAMIA/1027, which he bought from the 2nd Respondent under a written sale agreement dated 28 January 2016. The 1st Respondent, Registered Trustees African Divine Church, counterclaimed for 0.03 Ha it had purchased from the original owner in 1986, on which it had built and worshipped for over thirty years, claiming title by adverse possession. The 2nd Respondent supported the church, admitting he had told the Appellant the church portion would be hived off. Asati J, rehearsing the evidence as required on a first appeal, held that the church had been in possession for more than twelve years before the 2004 transfer and had acquired an overriding interest under section 28 of the Land Registration Act; the 2nd Respondent's title to that portion was extinguished under section 7 of the Limitation of Actions Act, so he had nothing to sell. The counterclaim was founded on adverse possession, not contract, and was not time barred. The court found the trial magistrate neither ignored the written agreement nor rewrote the contract, and held the order cancelling the Appellant's title lawful given his failure to exercise due diligence despite being a neighbour aware of the church's occupation. The grounds of appeal having failed, the appeal was dismissed with costs to the 1st Respondent, payable by the 2nd Respondent. The Appellant was left to pursue the indemnity clauses against the 2nd Respondent.

Key legal issues

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01

Adverse possession as an overriding interest on registered land

Holding

The 1st Respondent had been in possession of the disputed 0.03 Ha for over 12 years before transfer to the 2nd Respondent and had acquired or was acquiring an overriding interest under section 28(g) of the Land Registration Act; the 2nd Respondent's title to that portion was extinguished under section 7 of the Limitation of Actions Act

Reasoning

Possession from 1986 exceeded the 12-year limitation period before the 2004 transfer. Prescriptive rights survive changes of registered ownership and are not noted on the register. The 2nd Respondent therefore had no capacity to sell the disputed portion, leaving only 0.17 Ha available to the Appellant.

p. 3
02

Whether the trial court rewrote the contract between the parties

Holding

The magistrate did not ignore the written sale agreement nor rewrite the contract; the decision was supported by the evidence, including the portion occupied by the 1st Respondent which was not the subject of the sale

Reasoning

The written agreement covered E/BUNYORE/EBUSAMIA/1027, but the 0.03 Ha occupied by the church had already been sold to it in 1986 and its title had prescribed. The court was simply determining what fell outside the agreement. The Appellant's remedy lies against the 2nd Respondent under the indemnity clauses.

p. 4
03

Time bar of the counterclaim

Holding

The counterclaim was based on adverse possession, not on the land sale agreement, and was therefore not time barred as contended

Reasoning

The Appellant relied on section 7 of the Limitation of Actions Act and case law on contract claims, but the counterclaim itself pleaded occupation since the 1980s and entitlement by reason of adverse possession, to which the limitation analysis did not apply as argued.

p. 4
04

Cancellation of the Appellant's title

Holding

The order for cancellation of title was lawful because the Appellant purchased land that was not vacant, knew of the 1st Respondent's occupation and claim, and had failed to exercise due diligence

Reasoning

Under section 80 of the Land Registration Act rectification requires fraud or mistake and knowledge or contribution by the proprietor. The Appellant, a neighbour, bought land carrying a worship structure over thirty years old and was told of the church's claim; his rights were subject to the overriding prescriptive rights.

p. 5
05

Interference with findings of fact on first appeal

Holding

The court found no reason to interfere with the trial court's findings as none of the grounds establishing appellate interference was demonstrated

Reasoning

Applying settled principles, a first appellate court is slow to disturb findings of fact unless based on no evidence, misrepresentation of evidence, or a wrong principle. The evidence supported the trial court's decision, and the grounds of appeal were not proved.

p. 5

Legal principles established

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  • Change of ownership of registered land does not extinguish or interrupt the prescriptive rights of a party in adverse possession; such rights are overriding interests that need not be noted on the register
  • A first appeal court must reconsider and re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses
  • A purchaser of titled land has a duty of due diligence beyond an official search, including ascertaining the history and root of title and the position on the ground

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the Appeal to the 1st Respondent, the same to be borne by the 2nd Respondent

Authorities

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Legislation

  • Land Registration Actsection 26
  • Land Registration Actsection 28(h)
  • Land Registration Actsection 80
  • Limitation of Actions Actsection 7

Cases cited (15)

  • Gitobu Imanyara & 2 Others vs Attorney General
    [2016] eKLR
  • Selle and another vs Associated Motor Boat Company Ltd and others
    1968 E.A 123
  • South Nyanza Sugar Company Ltd vs Simeona A. Opala
    [2020] eKLR
  • National Bank of Kenya Ltd vs Pipeline Samkolit (K) and another
    [2002] EA 503
  • Hasan Zubedi vs Patrick Mwangangi Kibaiya & Another
    (2014) eKLR
  • Karuntimi Rayi vs M'Makinya M'Itunga
    [2013] eKLR
  • Merironi Nyakinyua Multi-purpose Co-operative Society Ltd vs Gituamba Holding Limited
    [2020] eKLR
  • Nyoro Kimwe vs Anderson Githinji
  • Githu vs Ndeete
    [1984] KLR 776
  • Schanlaladurgadass Rajput & Another vs Division Integrated Development Programmes Co. Ltd
    [2021] eKLR
  • Esther Ndegei Niiru & Another vs Leonard Gatei
    [2014] eKLR
  • Daniel Kipruto Metto vs Chase Bank [Kenya] Limited
    [2016] eKLR
  • Farah Awad Gullet vs CMC Motors Group Limited
    [2018] eKLR
  • Mwanasokoni vs Kenya Bus Service Limited
    (1982-88) 1 KAR 278
  • Kiruga vs Kiruga & Another
    (1988) KLR 348
On appeal from
Vihiga Senior Principal Magistrate's Court
Vihiga SPM's Court ELC Case No. 56 of 2018
Jurisdiction invoked
First appeal to the Environment and Land Court under statutory appellate powers (appeal from Senior Principal Magistrate's Court)

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, "Jeremiah Otemo Okonyo v Registered Trustees African Divine Church & James Mulongo Sileka [2022] KEELC 717 (KLR)", Case Analysis (2022). ELC Appeal No. 11 of 2021 (Formerly Kakamega ELCA No. E022 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/717/eng@2022-03-24

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