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ELCDismissedELC. Case No. 290 of 2016 (O.S)· [2022] KEELC 2048 (KLR)

Lorna Adhiambo Ragot v Esther Angienda Okoyo & Antone Ouma Oindo (Environment & Land Case 290 of 2016) [2022] KEELC 2048 (KLR)

Environment and Land Court
20 January 2022
AOAntony Ombwayo
3,343 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kisumu court dismissed an adverse possession claim because the 12-year clock had not run and the original land sale was invalid under succession law.

What this practically means

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Executive summary

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The plaintiff filed an Originating Summons under Order 37 rule 7 of the Civil Procedure Rules seeking to be declared proprietor of Kisumu/Wathorego/3664 by adverse possession, having bought a portion of Kisumu/Wathorego/1775 from the 2nd defendant in 1999 while the land was registered in the name of his deceased father, and claiming continuous, open and exclusive occupation since then. The 1st defendant, a buyer from James Oluoch K. Oyier in 2011 for Kshs. 550,000, asserted she was a bona fide purchaser for value without notice, that the land was vacant when she took possession, and that the plaintiff was a trespasser who encroached in 2015. The court held that adverse possession runs against a properly registered proprietor who fails to act within 12 years of dispossession. Since the 2nd defendant was only registered on 2/8/2010 and the 1st defendant on 20/6/2011, the 12-year period had not accrued when the suit was filed on 7/11/2016 - roughly six years short. The court further held that the 2nd defendant's sale of land registered in his deceased father's name was a nullity under section 45 of the Law of Succession Act, which prohibits intermeddling with a deceased person's free property. Applying Kasuve v Mwaani Investments Limited, the court found the plaintiff had not proved her claim and dismissed the Originating Summons with costs.

Key legal issues

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01

Whether the plaintiff had acquired title by adverse possession

Holding

The claim failed because the 12-year period had not accrued; the OS filed on 7/11/2016 was about 6 years short of the period running from 2/8/2010

Reasoning

The court traced the registered proprietorship: the 2nd defendant was registered on 2/8/2010 with title issued 23/8/2010, so limitation ran from 2/8/2010 and would ripen only on 2/8/2022. The 1st defendant was registered on 20/6/2011 and equally the 12 years had not materialized. The plaintiff's entry in 1999 was as a purchaser under an unenforceable sale of land registered in a deceased person's name, not adverse possession against a registered proprietor.

p. 4
02

Validity of the 2nd defendant's sale before succession

Holding

The sale of land still registered in the name of the 2nd defendant's deceased father was a nullity under section 45 of the Law of Succession Act

Reasoning

At the time of the 1999 sale agreement the land was registered in the name of Augustinus Oindo Anudo, deceased, and no succession had been done. Section 45 of the Law of Succession Act prohibits intermeddling with a deceased's free property, making the disposition illegal and unenforceable.

p. 4

Legal principles established

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  • A claimant in adverse possession must prove exclusive, open possession as of right without interruption for 12 years after dispossessing the owner or after the owner discontinued possession
  • Adverse possession cannot run against a deceased registered proprietor before a grant; the doctrine applies against a registered owner who fails to act within 12 years of being dispossessed
  • No person shall take possession of or dispose of free property of a deceased person except as authorized by the Law of Succession Act or a grant of representation

Court orders

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  1. 1.The plaintiff's Originating Summons is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7
  • Limitation of Actions Act (Cap 22)Sections 7, 13, 16, 17, 38(1) and (2)
  • Land Registration ActSection 28(h)
  • Land ActSection 7
  • Law of Succession ActSection 45

Cases cited (1)

  • Kasuve Vs Mwaani Investments Limited & 4 others
    1 KLR 184
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) and Order 37 rule 7 of the Civil Procedure Rules 2020

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, "Lorna Adhiambo Ragot v Esther Angienda Okoyo & Antone Ouma Oindo (Environment & Land Case 290 of 2016) [2022] KEELC 2048 (KLR)", Case Analysis (2022). ELC. Case No. 290 of 2016 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2048/eng@2022-01-20

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