Jeremiah Otemo Okonyo v Registered Trustees African Divine Church & James Mulongo Sileka [2022] KEELC 717 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Adverse possession as an overriding interest on registered land
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
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.
Whether the trial court rewrote the contract between the parties
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
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.
Time bar of the counterclaim
The counterclaim was based on adverse possession, not on the land sale agreement, and was therefore not time barred as contended
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.
Cancellation of the Appellant's title
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
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.
Interference with findings of fact on first appeal
The court found no reason to interfere with the trial court's findings as none of the grounds establishing appellate interference was demonstrated
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the Appeal to the 1st Respondent, the same to be borne by the 2nd Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.