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ELCPartially AllowedOriginating Summons dated June 8, 2019 (Kakamega)· [2023] KEELC 163 (KLR)

Wawire & 2 others v Makuba (Environment & Land Case 45 (OS) of 2019) [2023] KEELC 163 (KLR)

Environment and Land Court
25 January 2023
2,361 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that a family who bought land in 1983 and occupied it openly for over 12 years legally own it, even without a registered title.

What this practically means

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Executive summary

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By originating summons, three applicants claimed ownership of Bunyala/Nambacha/278 by adverse possession. They deposed that the suit property, originally registered to Emanuel Khasiri (deceased), was sold to their family in 1981 and 1983 by Henry W Wasike, the respondent and Anasitanzia Lyaka; that they paid the full purchase price and took vacant possession in 1983, building homes, planting crops and burying family members thereon. They alleged that a 1986 succession cause transferred the land to a trust-holder, but the grant was revoked and the property eventually registered to the respondent, who refused to transfer it. The respondent denied knowledge of the sale, alleged forgery, and noted a 1996 eviction suit dismissed for want of prosecution and a pending 2014 ELC suit. At trial, three applicants' witnesses testified and produced sale agreements, the register, chiefs' letters, burial permits and succession-cause documents; the respondent, despite an adjournment, failed to appear for his defence and filed no submissions. The court identified two issues: whether adverse possession was established and whether the reliefs should issue. Applying sections 7, 13, 17 and 38 of the Limitation of Actions Act and Public Trustee v Wanduru Ndegwa, the court held that time ran from final payment of the purchase price in 1983; the requisite 12 years elapsed by 1995, extinguishing the respondent's title. The 1996 eviction suit, being time-barred, did not affect the claim. The court declared the applicants owners, declared the respondent's title held in trust for them, ordered transfer within 90 days, and allowed the Deputy Registrar to execute in default. No order on costs was made.

Key legal issues

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01

Whether adverse possession was established

Holding

Yes - the applicants purchased in 1981/1983, paid the full purchase price, took possession in 1983, and occupied openly, peacefully and continuously with the defendant's knowledge for over 12 years, so the defendant's title was extinguished by 1995

Reasoning

The applicants bought the suit property in 1981/1983, paid the full purchase price, and took vacant possession in 1983. Under Public Trustee v Wanduru Ndegwa, time runs from final payment. The defendant effectively conceded possession by suing for eviction in 1996, offered no evidence to controvert the applicants' case, and filed no submissions. The requisite 12 years was attained by 1995, extinguishing his title under section 17.

p. 4
02

Whether the reliefs sought should issue

Holding

Yes - the applicants were declared owners by adverse possession, the defendant's title declared held in trust, and transfer ordered within 90 days, failing which the Deputy Registrar may execute the documents

Reasoning

Having found adverse possession established and the defendant's title extinguished, the court granted the substantive reliefs sought in the originating summons: declarations of ownership and of a resulting trust, an order for transfer within 90 days, and liberty for the Deputy Registrar to execute in default. Costs were, however, not awarded.

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Effect of the defendant's eviction suit filed in 1996

Holding

The 1996 suit had no effect on the applicants' claim since the right of action was already time-barred under section 7

Reasoning

The defendant sued for eviction in Kakamega High Court Case No 133 of 1996, dismissed for want of prosecution in 2008. By 1995 the applicants had already completed 12 years of adverse possession, so section 7 of the Limitation of Actions Act barred any suit to recover the land filed thereafter. The 1996 suit therefore could not interrupt the running of time or affect the claim.

p. 4

Legal principles established

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  • Once a purchaser completes paying the purchase price, his possession is not by permission of the seller and time for adverse possession runs from final payment
  • The combined effect of sections 7, 13 and 17 of the Limitation of Actions Act is to extinguish the proprietor's title after 12 years of adverse possession
  • The burden of proving adverse possession - nec vi, nec clam, nec precario - lies on the adverse possessor

Court orders

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  1. 1.It is hereby declared that the plaintiffs/applicants are the owners of the whole of the parcel of land known as Bunyala/Nambacha/278, having become entitled to it by virtue of adverse possession.
  2. 2.It is hereby declared that the defendant/respondent is holding title to the parcel of land known as Bunyala/Nambacha/278 in trust for the plaintiffs/applicants.
  3. 3.The defendant/respondent is hereby ordered to transfer title to the parcel of land known as Bunyala/Nambacha/278 to the plaintiffs/applicants within 90 (ninety) days from the date of delivery of this judgment.
  4. 4.In default of the defendant/respondent transferring the title as ordered above, the Deputy Registrar of this court shall be at liberty to execute all necessary documents on behalf of the defendant/respondent to effect the transfer.
  5. 5.No order on costs.

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)section 7
  • Limitation of Actions Act (Cap 22)section 13
  • Limitation of Actions Act (Cap 22)section 17
  • Limitation of Actions Act (Cap 22)section 38

Cases cited (4)

  • Wines & Spirits Kenya Limited & another v George Mwachiru Mwango
    [2018] eKLR
  • Benjamin Kamau Murima & others vs Gladys Njeri
    C A No 213 of 1996
  • Wanyoike Gathure v/s Berverly
    (1965) EA 514
  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR
Jurisdiction invoked
Original jurisdiction under sections 7, 13, 17 and 38 of the Limitation of Actions Act (adverse possession claim)

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, "Wawire & 2 others v Makuba (Environment & Land Case 45 (OS) of 2019) [2023] KEELC 163 (KLR)", Case Analysis (2023). Originating Summons dated June 8, 2019 (Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/163/eng@2023-01-25

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