Wainaina & another v Kiberenge & 49 others; Wainaina & another (Third party) (Environment & Land Case 76 of 2015 & 305 of 2016 (Consolidated)) [2022] KEELC 3227 (KLR)
The bottom line
#A Kenyan court threw out every claim in a land dispute, ruling that buyers with permission cannot claim adverse possession and titles transferred during a court case are invalid.
What this practically means
#Executive summary
#Key legal issues
#Elements of adverse possession and burden of proof
The claimant must prove actual, open, hostile, exclusive and continuous possession for 12 years without the owner's consent; the burden lies on the person asserting adverse possession
The court restated the doctrine as underpinned by sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act and section 28(h) of the Land Registration Act, relying on Wilson Kazungu Katana and other authorities. Possession with the owner's permission never becomes adverse until permission is terminated and the occupier remains in open defiance for the statutory period.
Whether the 1st to 20th defendants established adverse possession
No - their entry was with the authority of vendors believed to be owners, so time ran only from around 2014 when the plaintiff asked them to vacate; by filing in 2015 only about one year had elapsed
All the defendant witnesses testified that they bought their portions from the plaintiff's brothers. Entry therefore being consensual, adverse possession could only begin upon termination of that consent. Further, the counterclaim did not identify the suit parcel nor join the plaintiff and 21st defendant as defendants, dooming the claim as pleaded.
Validity of the 21st defendant's title acquired during the pendency of the suit
The transfer of the whole suit land to the 21st defendant on 22nd June 2016, while the suit was pending, was contrary to lis pendens and aimed at defeating the counterclaim; his title is unprotected and should revert to the plaintiff
The suit was filed on 19th May 2015, yet the plaintiff transferred the suit land to the 21st defendant on 22nd June 2016. There was also no evidence of Land Control Board consents for subdivision and transfer. The court found the transaction was intended to defeat the defendants' counterclaim and directed rectification of the register and reversion of title to the plaintiff.
Status of the Third Parties (the alleged vendors)
The court declined to make any final determination against the two Third Parties as there was no affidavit of service to confirm they were served with the counterclaim
The vendors, brothers of the plaintiff, were joined as 1st and 2nd Third Parties but did not participate. The court perused the record and found no affidavit of service, so could not be satisfied they were given an opportunity to be heard, and made no findings against them.
Legal principles established
#- A party claiming adverse possession must prove possession that is peaceful, open and continuous (nec vi, nec clam, nec precario) for the statutory period of 12 years
- Where entry onto land is permissive, time for adverse possession does not run until the permission is terminated and the possessor refuses to leave
- A transfer of suit land while a suit over that land is pending is contrary to the doctrine of lis pendens and the resulting title is unprotected
Court orders
#- 1.The two suits by the plaintiff and 21st Defendant and the counterclaim by the 1st to 20th Defendants are dismissed
- 2.The parties are to bear their own costs in the two suits and counterclaim
- 3.The County Land Registrar is directed to rectify the register of land parcel Tarakwa/Langwai Block 1 (Koriomat)/88 by deleting entries number 3 and 4 both of 22nd June 2016, call for cancellation of the original title deed issued to Barnabas Arap Kiprono (21st Defendant), and revert the proprietorship of the land to Isaac Mwangi Wainaina as in entry number 1 of 19th September, 2014
- Jurisdiction invoked
- Article 162(2) of the Constitution (Environment and Land Court jurisdiction over use and occupation of land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wainaina & another v Kiberenge & 49 others; Wainaina & another (Third party) (Environment & Land Case 76 of 2015 & 305 of 2016 (Consolidated)) [2022] KEELC 3227 (KLR)", Case Analysis (2022). ELC Suit No. 76 of 2015 (consolidated with ELC No. 305 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3227/eng@2022-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.