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ELCPartially AllowedEnvironment & Land Case No. 02 of 2021 (OS) (Formerly Kakamega ELC No. 267 of 2014)· [2022] KEELC 853 (KLR)

Rose Akello Otieno v Joseph Odote & another [2022] KEELC 853 (KLR)

Environment and Land Court
8 March 2022
EAE. Asati
4,588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who paid in full and lived on her ¾-acre portion for 17 years won ownership through adverse possession, even after the seller secretly transferred the land to someone else.

What this practically means

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Executive summary

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This was an Originating Summons dated 8th October 2012 brought under Order 37 Rules 3 and 7 of the Civil Procedure Rules and the Registered Land Act, in which Rose Akello Otieno claimed title by adverse possession to a portion of land parcel WEST BUNYORE/EKWANDA/1606. She averred that she and her late husband bought a portion from the 1st Defendant, entered the land in 1978, and remained in open, peaceful and uninterrupted possession, but the 1st Defendant failed to transfer the sold portion and instead secretly transferred the whole parcel to the 2nd Defendant in 2011. The Defendants filed a Replying Affidavit but, though properly served, did not attend the hearing, which proceeded ex parte. The court held that a defence unaccompanied by evidence remains mere unsubstantiated allegation, but that the plaintiff still bore the burden of proving her case on a balance of probabilities. Relying on the authorities on purchaser possession, the court found that time began to run on 2.4.1995 when the last instalment of purchase price was paid, so that by 2012 over 17 years of adverse possession had accrued. The court accepted the plaintiff's testimony that the sold portion measured about ¾ of an acre, held that adverse possession ran with the land notwithstanding the transfer to the 2nd Defendant as an overriding interest under section 28 of the Land Registration Act, and found that the 2nd Defendant's entry onto the land did not defeat rights already acquired. The suit was allowed: the plaintiff was declared absolute owner of the ¾ acre portion, ordered to be registered as proprietor, the defendants were directed to execute transfer documents failing which the Deputy Registrar would do so, an injunction issued, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Plaintiff acquired title by adverse possession to the sold portion of the suit land

Holding

Yes. The Plaintiff entered under a land sale agreement, paid the last instalment on 2.4.1995, remained in open, actual, peaceful, continuous and exclusive possession for over 12 years, and the transfer to the 2nd Defendant did not extinguish her accrued rights.

Reasoning

Possession by a purchaser under an uncompleted sale can mature into adverse possession once the purchase price is fully paid. The last payment was made on 2.4.1995, and by the filing of suit in 2012 approximately 17 years had elapsed, exceeding the prescribed 12-year period. The possession was open, actual, peaceful, continuous and exclusive, without the owner's consent. The subsequent transfer of the land to the 2nd Defendant in 2011 did not stop time running or extinguish the rights already acquired, such rights being an overriding interest under section 28 of the Land Registration Act.

p. 4
02

Whether a defendant's failure to adduce evidence relieves the plaintiff of the burden of proof

Holding

No. Although the plaintiff's unchallenged evidence stands uncontroverted, the plaintiff must still prove the claim on a balance of probabilities.

Reasoning

Where a defendant files a defence but neither attends court nor adduces evidence, the defence remains a statement of unsubstantiated allegations and the plaintiff's evidence stands unchallenged. However, uncontroverted evidence must still be credible and believable; the court must be satisfied that the plaintiff has adduced credible evidence proving the claim on a balance of probabilities before judgment can be entered merely because the defendant did not testify.

p. 3
03

Whether the size of the portion adversely possessed was sufficiently identified

Holding

Yes. The parcel number was disclosed in the pleadings and green card, and in her testimony the plaintiff identified the sold portion as about ¾ of an acre, which the court accepted absent contrary evidence.

Reasoning

Land alleged to be adversely possessed must be definitely identifiable with a clear boundary. The claim was for the sold portion, not the entire parcel. Although the pleadings and exhibits did not disclose the size, the plaintiff testified that the sold portion measures about ¾ of an acre, and in the absence of other evidence to controvert it, the court believed that evidence.

p. 5

Legal principles established

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  • Where a purchaser in possession has paid the purchase price and the sale is not completed, time begins to run in favour of the purchaser for adverse possession from the date of the last payment of the purchase price
  • Adverse possession runs with the land irrespective of change in proprietorship
  • Where a defendant fails to adduce evidence, the defence remains mere unsubstantiated allegations but the plaintiff must still discharge the burden and standard of proof

Court orders

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  1. 1.The Plaintiff is declared the absolute owner of a portion measuring ¾ of an acre of land known as WEST BUNYORE/EKWANDA/1606 by virtue of adverse possession in excess of the prescribed period
  2. 2.The Plaintiff is ordered to be registered as the owner of a portion measuring ¾ of an acre of land parcel No WEST BUNYORE/EKWANDA/1606
  3. 3.The Defendants to execute all documents of transfer in respect of the portion measuring ¾ of an acre in favour of the Plaintiff, failing which the Deputy Registrar of the Court to execute the requisite documents in place of the Defendants
  4. 4.An order restraining the Defendants, their agents, representatives, employees, servants and/or assigns from interfering with the Plaintiff's possession or occupation of the portion measuring ¾ of an acre of land parcel number WEST BUNYORE/EKWANDA/1606
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules (Cap 21, Laws of Kenya)Order 37 Rules 3, 7, 16, 17, 18, 19; Order 12 Rule 2; Order 17 Rules 3 and 4
  • Registered Land Act
  • Limitation of Actions ActSections 7, 13, 37, 38
  • Land Registration ActSection 28
  • Environment and Land Court ActSection 13
  • Constitution of Kenya 2010Article 162(2)
  • Evidence ActSections 107(1), 108, 109
  • Civil Procedure ActSection 27

Cases cited (18)

  • Edward Muriga (through Stanley Muriga -vs- Nathaniel R Schutts
    Civil Appeal No. 23 of 1997
  • Motex Knitwear Limited -vs- Gopites Knitwear Mills Limited
    [2009] eKLR
  • Kasuve vs Mwaani Investments Limited and 4 others
    1 KLR 184
  • Kweyu vs Omuto
    CA Civil Appeal No. 8 of 1990 (unreported)
  • Wilson Kazungu Katana & 101 Others vs Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Charter House Bank Limited (Under Statutory management) -vs- Frank N. Kamau
    [2016] eKLR
  • Kimani Ruchure vs Swift Rutherfords & Co. Ltd
    (1980) KLR 10
  • Gabriel Mbui vs Mukindia Maranya
    [1993] eKLR
  • Mtana Lewa -vs- Kahindi Ngala Mwagandi
    [2015] eKLR
  • Wilfred Kegonye Babu vs Henry Mose Onuko
    [2019] eKLR
  • Wambugu vs Njuguna
    [1983] KLR 172
  • Catthy Alucia Jebor Kiplagat vs Vincent Komen Krelnut
    [2018] eKLR
  • Peter Mbiri Michuki vs Samuel Mugo Michuki
    [2014] eKLR
  • Public Trustee vs Wanduru
    1984 KLR 314
  • Gatimu Kinguru vs Muya Gathangi
    [1976] KLR 253
  • Githu vs Ndeete
    [1994] KLR
  • Kenya Commercial Bank (suing as Administrator of the Estate of Paul Njoroge Muchene) vs Sarah Njeri Muchene
  • James Obande Wasui vs Jeremiah Ochwada Musumba
    [2002] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act and Section 38 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rose Akello Otieno v Joseph Odote & another [2022] KEELC 853 (KLR)", Case Analysis (2022). Environment & Land Case No. 02 of 2021 (OS) (Formerly Kakamega ELC No. 267 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/853/eng@2022-03-08

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