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ELCAllowedEnvironment & Land Case 90 of 2019· [2022] KEELC 15476 (KLR)

Gutwi v Mwita

Environment and Land Court of Kenya
22 November 2022
MKMohammed N. Kullow
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a family 2.5 acres of land they had occupied since 1974, even though the original sale was never legally completed.

What this practically means

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Executive summary

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The plaintiff, Daniel Werema Gutwi, brought an originating summons under section 38 of the Limitation of Actions Act claiming that he had acquired 2 ½ acres of LR No Nyabasi/bomerani/402 by adverse possession. He averred that his late father purchased the portion from the late Harun Chacha Machage under a sale agreement dated July 27, 1974, took immediate possession, and that he and his family had occupied the land openly and uninterruptedly for over 20 years, while the defendant, the registered proprietor, refused to complete the transfer. The defendant did not enter appearance, file a response, or attend the hearing despite due service; the matter proceeded ex parte and the defence case was marked closed. The plaintiff testified, produced the sale agreement, official search, green card and photographs, and filed submissions. The court framed two issues: whether adverse possession was proved and whether the plaintiff was entitled to the reliefs sought. Applying Mbira v Gachuhi and Peter Okoth v Ambrose Ochido Andajo, the court held that although the entry was initially permissive under the sale, the contract became unenforceable for want of land control board consent within the statutory six months, after which the plaintiff's continued occupation became non-consensual and adverse. No step was taken by the defendant to interrupt the possession, which exceeded the 12-year statutory period. The court found the claim proved on a balance of probabilities and allowed the originating summons, issuing a declaration of adverse possession over 2 ½ acres, an order of ownership to the exclusion of the defendant, an order for transfer and registration, and directing the defendant to execute the necessary instruments within 45 days, failing which the deputy registrar would execute them. Each party was to bear their own costs.

Key legal issues

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01

Whether permissive entry under a sale agreement can ripen into adverse possession

Holding

Yes - where the sale became unenforceable for want of land control board consent and the purchaser remained in uninterrupted occupation for over 12 years without any step by the registered proprietor, the occupation became adverse.

Reasoning

The plaintiff's father bought a portion in 1974 and took possession. The sale became unenforceable because land control board consent was not obtained within the statutory 6 months and transfer was never completed. Entry was therefore initially consensual, but continued occupation after the contract became unenforceable was non-consensual. No legal action or step interrupted the possession, which exceeded the 12-year statutory period.

02

Whether the plaintiff proved the claim to the required standard

Holding

Yes - the unchallenged evidence proved adverse possession on a balance of probabilities, entitling the plaintiff to the reliefs sought.

Reasoning

The defendant neither entered appearance nor filed a response and did not attend the hearing despite proper service, so the plaintiff's evidence was uncontroverted. The plaintiff testified, produced the 1974 sale agreement, official search, green card and photographs, and demonstrated continuous open occupation since 1974, well beyond the 12-year statutory period.

Legal principles established

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  • A purchaser who entered permissively under a sale that became unenforceable (for want of land control board consent) may found a claim in adverse possession where occupation continues uninterrupted for 12 years.
  • Adverse possession requires actual, open, exclusive, hostile and uninterrupted possession for the statutory period of 12 years, with the burden on the claimant.

Court orders

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  1. 1.A declaration that the plaintiff and any other person claiming under him has acquired a portion of LR No Nyabasi/bomerani/402 measuring 2 ½ acres by way of adverse possession.
  2. 2.An order that the plaintiff is the owner of the said portion of LR No Nyabasi/bomerani/402 measuring approx 2 ½ acres to the exclusion of the defendant.
  3. 3.An order for the transfer of a portion measuring 2 ½ acres of the suit parcel to be registered in the plaintiff's name.
  4. 4.The defendant to execute all necessary instruments to sub-divide and facilitate the transfer and registration of the 2 ½ acres into the plaintiff's names within 45 days, in default of which the deputy registrar to execute the said documents.
  5. 5.Each party to bear their costs of the suit.

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 13, 17, 38(1) and (2)
  • Land Registration Act (No 3 of 2012)section 28(h)

Cases cited (2)

  • Mbira v Gachuhi
    [2002] IEALR 137

    Requirements for adverse possession: non-permissive, actual, open, notorious, exclusive and adverse use for the statutory period without interruption.

  • Peter Okoth v Ambrose Ochido Andajo & Benedict Odhiambo Oketch
    [2021] eKLR

    Entry must be adverse or consent must be terminated; claimant must show exclusive possession and intention to dispossess; burden on claimant.

Jurisdiction invoked
Section 38 of the Limitation of Actions Act; Environment and Land Court Act (original jurisdiction over land claims)

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, "Gutwi v Mwita", Case Analysis (2022). Environment & Land Case 90 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15476/eng@2022-11-22

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