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ELCAllowedOriginating Summons dated 21st November 2021· [2022] KEELC 2604 (KLR)

Ogola & another v Rapemo (Environment & Land Case E006 of 2021) [2022] KEELC 2604 (KLR)

Environment and Land Court of Kenya
19 July 2022
1,496 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Homa Bay court gave land to a family that openly farmed it for over 50 years, proving Kenya's adverse possession rules in action.

What this practically means

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Executive summary

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The plaintiffs, a son and his widowed mother, sued by originating summons for a declaration of adverse possession over LR Kochia/Korayo/229 (0.42 Ha) in Homa Bay County, registered in the defendant's name since January 5, 2005. They claimed over fifty years of continuous, peaceful and uninterrupted occupation, having been born, raised and having buried family members, including the 1st plaintiff's father, on the land. The defendant, a clan member living at Lambwe Valley Settlement Scheme, was duly served with the suit as evidenced by affidavits of service but neither entered appearance nor filed a response. The court, noting the suit proceeded by formal proof after being converted from an originating summons to a plaint, framed the issues around the three elements of adverse possession drawn from Wilson Kazungu Katana: registration in another's name, open and exclusive possession adverse to the title, and occupation exceeding twelve years. Relying on the certificate of official search and the unchallenged, cogent testimony of both plaintiffs, the court found the elements proved. It held that cultivation constitutes possession, that the absentee registered owner had been dispossessed, and that the burden of proof on a balance of probabilities was discharged notwithstanding the formal proof hearing. Judgment was entered for the plaintiffs in terms of orders 1, 2 and 3 of the originating summons: a declaration of adverse possession, registration of the suit land in the 1st plaintiff's name, and costs of the summons in their favour.

Key legal issues

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01

Registration of the suit land

Holding

The defendant is the registered proprietor of the suit land with effect from January 5, 2005, satisfying the first dictate

Reasoning

PW1 and PW2 testified that the land is registered in the defendant's name, confirmed by the certificate of official search (PExhibit 1) showing registration effective January 5, 2005. The land is registered under the repealed Registered Land Act Chapter 300, consistent with the authority in Wainaina-vs-Murai and the Kazungu Katana framework.

p. 3
02

Open and exclusive possession adverse to the title

Holding

The plaintiffs, born and raised on the land and cultivating it, are in open and exclusive possession adverse to the defendant's title

Reasoning

PW1 was born and raised on the land and occupies it to date; PW2, an 83-year-old widow, has lived there since marriage and buried her husband there. Cultivation constitutes possession. The defendant, living at Lambwe Valley Settlement Scheme, knew of the occupation and never interfered or sought eviction.

p. 3
03

Duration in excess of twelve years

Holding

The plaintiffs have been in peaceful, continuous occupation in excess of fifty years, dispossessing the absentee defendant

Reasoning

The plaintiffs' occupation exceeding fifty years far surpasses the twelve-year statutory threshold. The defendant resides elsewhere and has taken no steps to interrupt their quiet possession, amounting to dispossession of the registered owner.

p. 4
04

Burden of proof in a formal proof suit

Holding

The plaintiffs discharged the burden of proving their claim on a balance of probabilities despite the unchallenged formal proof hearing

Reasoning

Section 107 of the Evidence Act places the burden on he who alleges, and the burden is not lessened in formal proof. Here the unchallenged and cogent testimony of PW1 and PW2 established the adverse possession claim on a balance of probabilities.

p. 4

Legal principles established

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  • Adverse possession requires that the parcel be registered in the name of a person other than the applicant, the applicant be in open and exclusive possession adverse to the owner's title, and that occupation exceed twelve years
  • Possession for purposes of adverse possession can take different forms, including cultivation
  • The burden of proof lies on the plaintiff and is not lessened where the case proceeds by formal proof

Court orders

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  1. 1.A finding and final judgment that the plaintiffs have acquired the suit land adversely
  2. 2.That the suit land currently occupied and cultivated by the plaintiffs be registered into the name of the 1st plaintiff
  3. 3.Costs of the originating summons provided for in favour of the plaintiffs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 37 rules 18 and 19
  • Registered Land Act Chapter 300 Laws of Kenya (Repealed)
  • Evidence Act Chapter 80 Laws of KenyaSection 107

Cases cited (8)

  • Richard Wefnafuna Songey-vs-Benard Mynyifwa Songol
    Court of Appeal Civil Appeal No. 11 of 2016
  • Ogada-vs-Mollin
    (2009) KLR 620
  • Galaxy Paints Co Ltd-vs-Falcon Grounds Ltd
    (2000) 2 EA 385
  • Wilson Kazungu Katana and 101 others-vs-Salim Abdalla Bakshein and another
    (2015) eKLR
  • Muthuita-vs-Wanoe and 2 others
    (2008) 1 KLR (G & F) 1024
  • Wainaina-vs-Murai and others
    (1976-1980) 1 KLR 283 at 289/290
  • Titus Ong'ang'a Nyachieo-vs-Martin Okioma Nyauma and 3 others
    (2017) eKLR
  • Kirugi and another–vs-Kabiya and 3 others
    (1987) KLR 347
Jurisdiction invoked
Original civil jurisdiction over land within Homa Bay County; suit commenced by originating summons under Order 37 rules 18 and 19 of the Civil Procedure Rules, 2010 and treated as a plaint

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, "Ogola & another v Rapemo (Environment & Land Case E006 of 2021) [2022] KEELC 2604 (KLR)", Case Analysis (2022). Originating Summons dated 21st November 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2604/eng@2022-07-19

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