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ELCDismissedELC Case (originally Kakamega HCC No. 14 of 2013, Originating Summons dated 18th January 2013)· [2023] KEELC 165 (KLR)

Afandi v Lusiche (Environment and Land Case 67 of 2019) [2023] KEELC 165 (KLR)

Environment and Land Court
25 January 2023
2,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The court dismissed an adverse possession claim because the claimant could not clearly prove exactly which land, and how much of it, he occupied.

What this practically means

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Executive summary

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The plaintiff/applicant commenced proceedings by Originating Summons dated 18th January 2013, filed in the High Court as Kakamega HCC No. 14 of 2013 and later transferred to the Environment and Land Court at Kakamega. He claimed entitlement to 3½ acres of Butsotso/Esumeyia/4213 by adverse possession, averring that his father purchased the land for him in 1981 under an agreement that erroneously cited plots 779 and 1360 instead of plot 777, the predecessor of the suit property. He sought extinguishment of the respondent's title, registration as owner under Section 38 of the Limitation of Actions Act, execution of transfer documents and costs. The respondent denied continuous open occupation, asserting that the applicant's father bought parcel 1360 and that the suit property was separate. The applicant testified and called one witness; the respondent testified alone. The court framed 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 the requirement that land claimed be clearly identified (Order 37 Rule 7, Civil Procedure Rules), the court found the applicant's evidence conflicting as to the parcel purchased and unsupported by any survey report or sketch establishing the size occupied. Although the respondent conceded occupation of a portion, the size remained unestablished. The court held the applicant failed to prove adverse possession, dismissed the Originating Summons and made no order on costs.

Key legal issues

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01

Whether the applicant established adverse possession over 3½ acres of Butsotso/Esumeyia/4213

Holding

The applicant failed to establish adverse possession because the land and its size were not clearly identified

Reasoning

The claim required the land claimed to be clearly identified. The applicant's evidence was conflicting as to which parcel his father purchased (779 or 1360, against his claim of 777), and he did not present any survey report or sketch to establish the size of land in his occupation. Although the respondent conceded occupation of a portion, the size remained unestablished. Possession must also be nec vi, nec clam, nec precario, with the burden on the adverse possessor.

p. 4
02

Whether the error in the sale agreement vitiates or supports the claim

Holding

The sale agreement error does not assist the applicant because the claim is for adverse possession, not enforcement of the agreement; identity of land was still not proved

Reasoning

The court held that in adverse possession claims, the sale transaction serves only to show identity of land and compute time. The applicant contended the agreement erroneously cited plots 779 and 1360 instead of 777, but his testimony shifted between the plots, and without a survey report or sketch, neither identity nor size of the land claimed was established.

p. 4

Legal principles established

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  • In a claim of adverse possession, the land being claimed must be clearly identified; the burden is on the adverse possessor to identify the land and its size
  • In a claim for adverse possession, the sale transaction is only relevant for purposes of showing identity of land and computing time, not for enforcing the sale agreement

Court orders

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  1. 1.Dismissal of the Originating Summons
  2. 2.No order on costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17, 38
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (6)

  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] eKLR
  • Wines & Spirits Kenya Limited & another v George Mwachiru Mwango
    [2018] eKLR
  • Benjamin Kamau Murima & Others v Gladys Njeri
    C A No. 213 of 1996
  • Wanyoike Gathure v/s Berverly
    [1965] EA 514
  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Githu v Ndele
    [1984] KLR 776
Jurisdiction invoked
Sections 7, 13, 17 and 38 of the Limitation of Actions Act (Cap 22); suit transferred from the High Court (Kakamega HCC No. 14 of 2013)

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, "Afandi v Lusiche (Environment and Land Case 67 of 2019) [2023] KEELC 165 (KLR)", Case Analysis (2023). ELC Case (originally Kakamega HCC No. 14 of 2013, Originating Summons dated 18th January 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/165/eng@2023-01-25

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