Elizabeth Amukhuma Andai & another v Tabitha Otsieka Ojera & another [2022] KEELC 786 (KLR)
The bottom line
#The Bungoma Environment and Land Court dismissed a family's adverse possession land claim, finding they only moved in months before filing suit, not twelve years.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs had acquired the suit land by adverse possession
The claim failed. The plaintiffs' own photographs and admissions showed they first constructed a home on the land in August 2019, only six months before filing suit, far short of the twelve years required.
The plaintiffs alleged occupation since 1992/1995, but dated photographs filed by the 1st defendant showed an incomplete mud house in August 2019, which only later appeared plastered with furniture in the plaintiffs' own undated photographs. Both plaintiffs admitted in cross-examination that the house was constructed in 2019. Occupation must be nec vi, nec clam, nec precario and uninterrupted for 12 years.
Whether possession with the consent of the registered/beneficial owner can be adverse
No. The burial of the 1st plaintiff's husband on the land was done with the consent of the registered and beneficial owners, and possession under consent defeats adverse possession.
The 1st defendant testified that the burial of David Ojera was permitted by Alice Ojera, the beneficial owner. Possession and occupation of land to be adverse must not be with the consent of the registered proprietor; even if the burial was forced, that would equally defeat the claim.
Whether a trust could be implied in favour of the plaintiffs
No trust was established; the Court will not imply a trust except in the clearest of cases, and no evidence justified any express, constructive, resulting or customary trust.
The plaintiffs' trust claim rested on their adverse possession claim which collapsed. The Court of Appeal authority requires the intention of the parties to create a trust to be clearly determined before a trust is implied; nothing of the sort was proved here.
Whether the 1st defendant's title was invalid and whether she was entitled to evict the plaintiffs
The title was unimpeached and, as registered proprietor, the 1st defendant was entitled to eject the trespassers; her Counter-Claim was merited.
A registered proprietor's title can only be challenged if obtained through fraud, misrepresentation, illegality, unprocedurally or through a corrupt scheme, and no such evidence was adduced. The plaintiffs, having constructed a structure in August 2019, were trespassers.
Legal principles established
#- A claim for adverse possession can only be made against the person then registered as the proprietor of the land under Section 38(1) of the Limitation of Actions Act
- Possession maintained with the consent of the registered or beneficial owner cannot be adverse
- A party claiming to be registered as owner by adverse possession cannot simultaneously challenge the validity of the very title sought to be extinguished
- The Court will not imply a trust except in the clearest of cases
Court orders
#- 1.The plaintiffs' suit is dismissed
- 2.Judgment entered for the 1st defendant on her Counter-Claim: plaintiffs to vacate the suit land within three months or be evicted in accordance with the law
- 3.Plaintiffs permanently restrained from entering, trespassing, constructing, ploughing or otherwise interfering with the 1st defendant's possession, ownership and occupation of the suit land
- 4.The restriction (caution) placed on the suit land by the plaintiffs is removed forthwith
- 5.The suit against the 2nd defendant is struck out with no orders as to costs
- 6.Each party to meet their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act, Section 38(1) (adverse possession claim to registered land); consolidated magistrate court matter as defence and Counter-Claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Amukhuma Andai & another v Tabitha Otsieka Ojera & another [2022] KEELC 786 (KLR)", Case Analysis (2022). Bungoma ELC Originating Summons (amended) dated 14th February 2020, consolidated with Bungoma Chief Magistrate's Court Civil Case No 87 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/786/eng@2022-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.