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ELCPartially AllowedBusia ELC No. 95 of 2019 (Originating Summons dated 23rd August 2019)· [2022] KEELC 770 (KLR)

John Odunga Barasa v Vincent Barasa Omollo [2022] KEELC 770 (KLR)

Environment and Land Court
16 March 2022
AOA. Omollo
3,870 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave a man full ownership of land he openly occupied and used for over 12 years, even though the original sale lacked formal legal approval.

What this practically means

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Executive summary

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The applicant brought an Originating Summons claiming title by adverse possession to approximately 0.4Ha out of LR No. Bukhayo/Bugengi/15029, registered in the name of the respondent. He bought one acre in 2002 from Benson Wesonga (PW3), who had himself bought two acres in 1994 from the family of the late Omolo Omosingi, the registered owner of the original parcel Bukhayo/Bugengi/597, later subdivided into 15029 and 15030 during succession. The applicant built a home, toilet, kitchens and a borehole and occupied the land openly. The respondent, administrator of the deceased's estate (Succession Cause 242 of 2013), denied the claim, alleging trespass from 2010 and that the sales amounted to intermeddling in a deceased estate, rendering the remedy of adverse possession unavailable. The court framed one substantive issue: whether the applicant's occupation was adverse to the respondent. Applying Kweyu vs Omutut and Samwel Nyakenogo, the court found the respondent's witnesses contradictory on the entry date while the applicant's evidence was consistent and corroborated. It held that the want of letters of administration in the chain of sale did not stop time from running against the registered owner and beneficiaries. The respondent's title to the 0.4Ha was declared extinguished; the applicant was registered as absolute proprietor, with the Deputy Registrar empowered to execute transfer documents in default. Each party was ordered to bear their own costs. Judgment delivered at Busia on 16th March 2022 by A. Omollo, J.

Key legal issues

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01

Whether the applicant's occupation of the suit land was adverse to the Respondent for the statutory period

Holding

Yes - the applicant proved open, notorious, exclusive and uninterrupted occupation from 2002 (over 12 years), extinguishing the respondent's title to the 0.4Ha portion

Reasoning

The applicant entered under a sale agreement dated 23/4/2002 with PW3, who had bought two acres from the deceased's family in 1994. Both DW1 and DW2 admitted the applicant was in occupation with a house, kitchen and borehole. Their testimony on the entry date was contradictory (2005 vs 2010). Lack of letters of administration did not stop time from running against the registered owner and beneficiaries. Occupation was uninterrupted from 2002 to filing.

p. 4
02

Who bears the costs of the suit

Holding

Each party to bear their own respective costs

Reasoning

Despite the applicant seeking costs against the respondent, the court in its final orders directed each party to bear their respective costs of the case, departing from the usual costs-follow-the-event rule.

p. 4

Legal principles established

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  • Lack of letters of administration does not prevent time from running in favour of a purchaser put in possession; adverse possession can run against the registered owner and beneficiaries despite an invalid sale
  • Adverse possession requires non-permissive, actual, open, notorious, exclusive and continuous occupation for the statutory period of 12 years without interruption

Court orders

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  1. 1.Declared that the respondent's rights over a portion of LR No. Bukhayo/Bugengi/15029 measuring 0.4Ha got extinguished by adverse possession upon expiry of 12 years from the applicant coming into possession from March 2002
  2. 2.Perpetual injunction barring the respondents from taking and/or using the 0.4Ha portion of LR No. Bukhayo/Bugengi/15029 presently under the applicant's occupation and use
  3. 3.Ordered that the 0.4Ha portion of LR No. Bukhayo/Bugengi/15029 be forthwith registered in the name of the applicant as absolute proprietor thereof
  4. 4.Directed the respondent to execute all relevant documents to facilitate sub-division and transfer of the 0.4Ha portion to the applicant, and in default the Deputy Registrar to execute the same in place of the respondent
  5. 5.Each party to bear their respective costs of the case

Authorities

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Legislation

  • Limitation of Actions Actadverse possession provisions (generally)

Cases cited (6)

  • Peter Mbiri Michuki -V- Samuel Mugo
    Civil Appeal No. 22 of 2013
  • Mtana Lewa -V- Kahindi Ngala Mwangandi
    (2005) eKLR
  • Samuel Kamere -V- Land Registrar
    (2015) eKLR
  • Samwel Nyakenogo vs. Samwel Orucho Onyaru
    Civil Appeal No. 24 of 2004
  • Wambugu Vs. Njuguna
    Civil Appeal No. 10 of 1982
  • Kweyu vs Omutut
    [1990] KLR 709
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcels LR No. Bukhayo/Bugengi/15029 and 597 (adverse possession claim under the Limitation of Actions Act)

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, "John Odunga Barasa v Vincent Barasa Omollo [2022] KEELC 770 (KLR)", Case Analysis (2022). Busia ELC No. 95 of 2019 (Originating Summons dated 23rd August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/770/eng@2022-03-16

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