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ELCPartially AllowedEnvironment & Land Case 47 of 2018· [2022] KEELC 4863 (KLR)

Amukowa v Adome

Environment and Land Court
21 September 2022
AOAA Omollo
2,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Busia court gave a man the 0.07 hectares he had openly occupied and developed for over 12 years, despite the registered owner's objections.

What this practically means

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Executive summary

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Ernest Amukowa filed an originating summons under sections 7 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules claiming 0.08 ha out of LR South Teso/Angoromo/11756 by adverse possession. He deposed that in 1991 he bought 1½ acres from the respondent's father, Raphael Adome Omuse, who demarcated the boundaries; a title later prepared for him excluded the 0.08 ha he occupied and developed with a homestead for over 27 years. The respondent denied the claim, asserting the applicant obliterated boundaries, blocked a road of access, and came to court with dirty hands, framing the matter as a boundary dispute founded on an illegal act. The applicant testified with a witness and the County Surveyor, who measured the occupation at 0.07 ha within existing boundaries the respondent acknowledged. The court framed three issues: whether the dispute was a boundary dispute, whether adverse possession was established, and costs. It held the respondent's admission of the applicant's open, fenced, uninterrupted occupation for over 12 years defeated the boundary-dispute defence; the entry was legal, being pursuant to a sale agreement with the vendor who demarcated the land; and the respondent produced no RIM or expert evidence of the alleged blocked road. The applicant proved his case on a balance of probabilities. The court declared the respondent's rights over the 0.07 ha extinguished, perpetually barred the respondent from the portion, ordered registration of the applicant, directed execution of transfer documents within 45 days with the Deputy Registrar to execute in default, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the dispute was a mere boundary dispute incapable of supporting adverse possession

Holding

No - the respondent's admission of the applicant's open, fenced, uninterrupted occupation of the 0.07 ha for over 12 years defeated the boundary-dispute defence

Reasoning

The respondent admitted the applicant occupied and fenced the 0.07 ha without interference since the 1991 purchase. The vendor demarcated the boundaries, and PW2 and PW3 corroborated the occupation. Open and peaceful possession exceeding twelve years dispossessed the respondent, so the claim was adverse possession, not a boundary dispute.

p. 4
02

Whether the applicant's entry onto the land was illegal so as to attract the clean-hands doctrine

Holding

Entry was legal, being pursuant to a sale agreement with the respondent's father who demarcated the boundaries; the respondent produced no RIM or expert evidence of a blocked road

Reasoning

The applicant entered under a sale agreement executed with the respondent's father, who planted sisal to demarcate the sold portion. The respondent alleged obliteration of boundaries and blocking of a road of access but produced no RIM or expert evidence. The surveyor confirmed occupation within existing boundaries agreed by the respondent.

p. 4

Legal principles established

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  • Possession entered under a sale agreement and demarcated by the vendor is not illegal entry; continuous open possession for over 12 years extinguishes the registered proprietor's title

Court orders

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  1. 1.The respondents' rights over a portion measuring approximately 0.07 ha comprised in title LR No South Teso/Angoromo/11756 got extinguished by adverse possession upon expiry of 12 years from the date the applicant came into possession.
  2. 2.The respondents are perpetually barred from taking or using the impugned portion measuring 0.07 ha out of South Teso/Angoromo/11756 currently in the occupation of the applicant.
  3. 3.The applicant shall be registered as proprietor of a portion measuring 0.07 hectares out of title LR No South Teso/Angoromo/11756 which he is occupying and has fully developed.
  4. 4.The respondent to execute the relevant documents to facilitate sub-division, transfer and registration of the 0.07 hectares in the applicant's name within 45 days, failing which the Deputy Registrar to execute the same in place of the respondent.
  5. 5.Each party to bear their respective costs of the suit.

Authorities

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Legislation

  • Limitation of Actions Actsections 7 and 38
  • Civil Procedure RulesOrder 37

Cases cited (2)

  • Njuguna Madato vs Masai Itumo & 2 others
    (2002) eKLR

    Adverse possession must be adequate, continuous and exclusive - adequate in continuity, publicity and extent

  • Harrison Ngige Kaare vs Gichobi Kaara & Ano
    (1997) eKLR

    Possession is hostile if open, without right, force or fraud, and exclusive; limitation period runs when possessor uses land as his own

Jurisdiction invoked
Sections 7 and 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules (originating summons for adverse possession)

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, "Amukowa v Adome", Case Analysis (2022). Environment & Land Case 47 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4863/eng@2022-09-21

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