Wawire & 2 others v Makuba (Environment & Land Case 45 (OS) of 2019) [2023] KEELC 163 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether adverse possession was established
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
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.
Whether the reliefs sought should issue
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
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.
Effect of the defendant's eviction suit filed in 1996
The 1996 suit had no effect on the applicants' claim since the right of action was already time-barred under section 7
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.
Legal principles established
#- 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
#- 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.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.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.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.No order on costs.
- Jurisdiction invoked
- Original jurisdiction under sections 7, 13, 17 and 38 of the Limitation of Actions Act (adverse possession claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.