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ELCDismissedBungoma ELC Originating Summons (amended) dated 14th February 2020, consolidated with Bungoma Chief Magistrate's Court Civil Case No 87 of 2019· [2022] KEELC 786 (KLR)

Elizabeth Amukhuma Andai & another v Tabitha Otsieka Ojera & another [2022] KEELC 786 (KLR)

Environment and Land Court
17 March 2022
5,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was an Environment and Land Court decision at Bungoma by Boaz N. Olao J in consolidated proceedings: the plaintiffs' amended Originating Summons claiming the land parcel East Bukusu/South Kanduyi/18770 by adverse possession and trust, and the 1st defendant's Counter-Claim (originally her plaint in Bungoma CMCC No 87 of 2019) for eviction, permanent injunction and removal of a caution. The plaintiffs alleged occupation since 1992/1995 and asserted the 1st defendant's title was extinguished and that she held the land in trust. The court identified three issues and found, principally on the parties' own photographic evidence and admissions in cross-examination, that the plaintiffs first constructed a home on the land in August 2019 - only six months before filing suit - when they faced a notice to vacate a Government house. Their alleged long occupation was false. Further, the burial of the 1st plaintiff's husband on the land was with the consent of the registered and beneficial owners, which defeats adverse possession. The court held a party cannot simultaneously claim adverse possession of title and challenge that title's validity, and found no evidence of any express, constructive, resulting or customary trust. The 2nd defendant, Felix Wangila Kopilo, was wrongly joined as he was not the registered proprietor and filed no pleadings; the suit against him was struck out. The plaintiffs' suit was dismissed and judgment entered for the 1st defendant on her Counter-Claim: plaintiffs to vacate within three months or be evicted, permanent injunction, and removal of the restriction. As the parties are family, each party was ordered to meet their own costs.

Key legal issues

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01

Whether the plaintiffs had acquired the suit land by adverse possession

Holding

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.

Reasoning

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.

p. 6
02

Whether possession with the consent of the registered/beneficial owner can be adverse

Holding

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.

Reasoning

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.

p. 6
03

Whether a trust could be implied in favour of the plaintiffs

Holding

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.

Reasoning

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.

p. 7
04

Whether the 1st defendant's title was invalid and whether she was entitled to evict the plaintiffs

Holding

The title was unimpeached and, as registered proprietor, the 1st defendant was entitled to eject the trespassers; her Counter-Claim was merited.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The plaintiffs' suit is dismissed
  2. 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. 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. 4.The restriction (caution) placed on the suit land by the plaintiffs is removed forthwith
  5. 5.The suit against the 2nd defendant is struck out with no orders as to costs
  6. 6.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38(1)
  • Limitation of Actions ActSection 7
  • Law of Contract ActSection 3(3)
  • Land Registration Actvarious (as submitted by counsel)

Cases cited (8)

  • KASUVE .V. MWAANI INVESTMENTS LTD & OTHERS
    2004 KLR 184
  • WANJE .V. SAIKWA No 2
    (1984) KLR 284
  • GITHU .V. NDEETE
    1984 KLR 776
  • MATE GITABI .V. JANE KARUBU MUGA & OTHERS
    C.A CIVIL APPEAL No 43 of 2015 (NJERI)
  • ELIVA NYONGESA LUSENAKA & ANOTHER .V. NATHAN WEKESA OMACHA
    KISUMU CIVIL APPEAL No 134 of 1993
  • ROBERT SHUME & OTHERS .V. SAMSON KALAMA
    2015 eKLR
  • PETER KAMAU NJAU .V. EMANUEL CHARO TINGA
    2016 eKLR
  • PETER NDUNGU NJENGA .V. SOPHIA WATIRI NDUNGU
    2000 eKLR
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

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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, "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.