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ELCAllowedOriginating Summons filed 23rd July 2019 (number not stated in judgment)· [2022] KEELC 854 (KLR)
Christopher Mbayi & another v Aggrey Makomere [2022] KEELC 854 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Kenyan court gave two brothers ownership of land they had openly occupied for over 12 years, even though the legal title remained in someone else's name.
What this practically means
#Executive summary
#The applicants, cousins of the respondent, brought an Originating Summons filed on 23rd July 2019 seeking declarations of adverse possession over 2 acres (first applicant) and 1 acre (second applicant) of L.R Marama/Buchenya/390, a parcel of approximately 5 acres registered in the respondent's name since 5th July 1995. They alleged the respondent's father held the land in trust for their late father, and that they had homesteaded and utilised their respective portions openly, peacefully, continuously and uninterruptedly for over 12 years. Although duly served, the respondent neither entered appearance nor filed a defence or submissions, leaving the applicants' case wholly unchallenged. At the hearing the first applicant testified as sole witness, adopting his supporting affidavit and producing a certificate of search dated 24th June 2019, which the court treated as prima facie evidence under Sections 34 and 35 of the Land Registration Act. The search also showed a caution lodged by the first applicant in September 1995 claiming a licensee's interest. Relying on established authority restating the essentials of adverse possession - continuous, open and uninterrupted occupation for 12 years as of right (nec vi, nec clam, nec precario) - the court found the ingredients proved and allowed the claim. It declared that each applicant had acquired ownership of his portion by prescription, ordered the respondent to subdivide and transfer the portions within 45 days, directed the Deputy Registrar to execute the necessary documents in default, and ordered each party to bear their own costs.
Key legal issues
#01
Whether unchallenged evidence of open, peaceful and uninterrupted occupation for over 12 years establishes adverse possession
Holding
Yes; the applicants acquired the portions under their occupation (2 acres and 1 acre respectively) by prescription
Reasoning
The certificate of search showed the respondent was registered on 5th July 1995. The first applicant testified that the applicants had occupied and homesteaded 2 acres and 1 acre respectively for over 12 years openly and peacefully. The respondent, though served, neither entered appearance nor defended, so the evidence was unchallenged and accepted.
p. 2
Legal principles established
#- For a claim of adverse possession to succeed, the occupation must be continuous, open and uninterrupted for a period of 12 years
- A certificate of search signed by a land registrar is prima facie evidence of its contents unless the contrary is proved
Court orders
#- 1.Declaration that the first applicant has acquired ownership of 2 acres of L.R Marama/Buchenya/390 through prescription
- 2.Declaration that the second applicant has acquired ownership of 1 acre of L.R Marama/Buchenya/390 through prescription
- 3.The respondent to subdivide and transfer 2 acres to the first applicant and 1 acre to the second applicant within 45 days from delivery of the judgment
- 4.In default, the Deputy Registrar of the court to execute on the respondent's behalf all necessary documents to facilitate subdivision and transfer
- 5.Each party to bear own costs of the suit
- Jurisdiction invoked
- Original jurisdiction under the Limitation of Actions Act and Land Registration Act (adverse possession claim by Originating Summons; specific empowering provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Mbayi & another v Aggrey Makomere [2022] KEELC 854 (KLR)", Case Analysis (2022). Originating Summons filed 23rd July 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/854/eng@2022-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.