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ELCDismissedOriginating Summons dated 6/09/2016· [2023] KEELC 65 (KLR)

Ogak v Auma & another (Environment & Land Case 11 of 2021) [2023] KEELC 65 (KLR)

Environment and Land Court
19 January 2023
3,352 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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The Siaya Environment and Land Court dismissed an adverse possession claim because the occupier entered with permission and never proved exactly which piece of land he exclusively occupied.

What this practically means

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Executive summary

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The plaintiff sued the 1st and 2nd defendants by originating summons dated 6/09/2016 seeking to be declared absolute owner of North Ugenya/Simur/3049 and 3050 (subdivisions of a mother parcel formerly registered in the name of Alfred Angech, deceased) by adverse possession, plus orders for transfer, permanent injunction and vacant possession. The plaintiff, raised by Alfred as a son, claimed over 30 years of open, uninterrupted occupation. The defendants' counsel filed pleadings late, and after closure of both parties' cases on 27/7/2022, the 1st defendant's witness statement and documents were filed out of time; the court struck them out as improperly on record. On adverse possession, the court held the plaintiff's entry was with Alfred's consent, which negated adversity until Alfred's death on 5/5/1995, whereafter over 21 years of uncontroverted, open possession accrued. However, the plaintiff failed to identify the specific portion of the suit properties over which he was in exclusive possession, particularly given an undisclosed third party's construction on the land, and so could not discharge the burden of proof. Regarding North Ugenya/Simur/3050, sold by the 2nd defendant to Western Zone Christian Union Self Group during the pendency of the suit in breach of lis pendens, the court held that, absent joinder of the purchaser and in fidelity to Article 50 and audi alteram partem, it could not extinguish that purchaser's title. The plaintiff's claim was dismissed with each party bearing their respective costs, given the close family relations between the plaintiff and the 1st defendant.

Key legal issues

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01

Whether adverse orders can be made against the registered proprietor of North Ugenya/Simur/3050 who purchased during the pendency of the suit

Holding

The court cannot cancel or extinguish the third-party purchaser's title because the purchaser was not joined to the proceedings and is entitled to a fair hearing under Article 50

Reasoning

Although the 2nd defendant's sale during the pendency of the suit breached lis pendens, which binds even third parties without notice, the purchaser (Western Zone Christian Union Self Group) was never joined. Citing Pashito Holdings, the court held that audi alteram partem and Article 50 prevent it from adversely affecting a party who has not been heard, notwithstanding sympathy for the plaintiff.

p. 4
02

Whether the defendants' documents filed after closure of the case were properly on record

Holding

The documents were improperly on record and were struck out

Reasoning

The documents were filed after the parties' case was closed, contravening Orders 7 Rule 5 and 37 Rule 19(3) of the Civil Procedure Rules, and were not anchored on any pleading since no replying affidavit or defence was ever filed. Once the case was heard and closed, the suit was ripe for judgment under Order 21 Rule 1.

p. 5
03

Whether the plaintiff proved adverse possession

Holding

The claim failed because the plaintiff entered with permission and did not prove exclusive occupation of an identifiable portion

Reasoning

Entry onto the mother parcel was with Alfred's consent, which negates adverse possession; time only began accruing on Alfred's death on 5/5/1995. Even so, the plaintiff failed to identify the specific portion he occupied exclusively, especially given an undisclosed third party's construction on the land. Without ascertaining the acreage and specific parcel, the claim could not succeed on a balance of probabilities.

p. 6

Legal principles established

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  • Entry with the owner's consent negates adverse possession; time begins to run only when that consent ceases, e.g. upon the owner's death
  • Identification of the specific, definite portion of land in exclusive possession is an integral part of proving adverse possession
  • The doctrine of lis pendens binds third parties who acquire an interest in the subject matter during the pendency of proceedings

Court orders

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  1. 1.The defendants' witness statement and list and bundle of documents filed after close of the case are struck out
  2. 2.The Plaintiff's claim of adverse possession is dismissed
  3. 3.Each party shall bear their respective costs
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act and the Environment and Land Court Act (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, "Ogak v Auma & another (Environment & Land Case 11 of 2021) [2023] KEELC 65 (KLR)", Case Analysis (2023). Originating Summons dated 6/09/2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/65/eng@2023-01-19

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