Nathan Lusasi Mukhono v Maurice Pius Makokha & 5 others [2022] KEELC 766 (KLR)
The bottom line
#A Kenyan court gave a man title to land he bought and occupied for over 30 years, ruling the new buyer's title invalid.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant proved adverse possession
The applicant proved adverse possession on a balance of probabilities; his possession from 1980 (adverse from 1987 following expiry of the six-year contract limitation period) exceeded twelve years, extinguishing the original registered owner's title
The court found the applicant bought the land in 1980, took possession by building a house and burying his son there, and this evidence was uncontroverted as the respondents did not attend the hearing. Applying Wanyoike v Kahiri, time began running after the six-year contract period ended in 1986, so occupation was adverse from 1987, exceeding twelve years before the 6th Respondent's 2011 purchase. The title of the deceased vendor was thereby extinguished, so no good title could pass downstream.
Whether the 6th Respondent is a bona fide purchaser for value without notice
The 6th Respondent failed to establish bona fide purchaser status because she did not prove procedural regularity (no Land Control Board consent or transfer form) and a restriction on the green card would have disclosed the applicant's interest
The court noted the 6th Respondent bore the burden of proving innocent purchaser status. No copy of the search was annexed, no Land Control Board consent or signed transfer form was produced, and the green card showed a restriction entered in favour of the applicant in 2012, still standing when she obtained her title in 2014. The inference was that she would have learnt of the applicant's interest merely by seeking a copy of the records, and the court doubted she inspected vacant land.
Legal principles established
#- In a purchase scenario, the period of limitation for adverse possession starts to run on the date of payment of the last instalment of the purchase, and once the contract period has ended, continued occupation is adverse to the registered owner
- A grantor of land cannot grant a better title than he has; a person whose title has been extinguished by adverse possession cannot pass good title to a subsequent purchaser
- A party asserting bona fide purchaser status bears the burden of proving it, including due diligence and a procedurally regular acquisition
- A change of ownership of land occupied by a person in adverse possession does not interrupt that possession
Court orders
#- 1.A declaration that the applicant has acquired title to the whole of land parcel number BUKHAYO/KISOKO/7020 by virtue of adverse possession after having been in occupation and possession of the same for a period in excess of 12 years
- 2.An order that the 6th Respondent shall forthwith execute all necessary documents to facilitate the transfer and registration of land BUKHAYO/KISOKO/7020 measuring 0.17 HA into the applicant's name failing to which the Deputy Registrar of the court to execute the documents in place of the 6th Respondent
- 3.The applicant is awarded the costs of the suit to be met by the 1st to 5th Respondents
- Jurisdiction invoked
- Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22) and Section 7(d) of the Land Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Nathan Lusasi Mukhono v Maurice Pius Makokha & 5 others [2022] KEELC 766 (KLR)", Case Analysis (2022). ELC Case Number 185 of 2014 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/766/eng@2022-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.