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ELCPartially AllowedEnvironment & Land Case 831 of 2017· [2023] KEELC 536 (KLR)

Okello & another v Okello (Environment & Land Case 831 of 2017) [2023] KEELC 536 (KLR)

Environment and Land Court
23 January 2023
3,161 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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A Migori land court rejected a family's adverse possession claim over 2 acres because only 11 years had passed, but let them keep a disputed half acre the defendant conceded.

What this practically means

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Executive summary

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The Plaintiffs (legal representatives of the deceased original Plaintiff, Joel Okello Nyatuga) brought an Originating Summons seeking a declaration that the Defendant's title to 2½ Acres of L.R. North Sakwa/Kamasoga/2031 was extinguished by adverse possession, their registration as proprietors, transfer instruments, and costs. They claimed the Defendant sold them the 2½ Acres in 1978 for Kshs. 2,000/- and they had occupied, used and cultivated it peacefully for over 40 years. The Defendant denied the claim, asserting he only became registered owner in 2006 (hence the claim was premature at 11 years), that the Plaintiffs admitted being denied access, that the sale could not be specifically performed for want of Land Control Board consent, and that in 1978 he was a minor so the agreement was a forgery/fraud. At trial the Plaintiffs testified; the defence case was closed after the Defendant and his advocate failed to attend. The court framed two issues: proof of adverse possession and entitlement to reliefs. It found the 1978 sale contract null and void for want of capacity to contract and unenforceable, also noting the concession that no Land Control Board consent was obtained. Applying the Limitation of Actions Act, the Land Registration Act and the Court of Appeal decision in Peter Kamau Njau v Emmanuel Charo Tinga, it held the Plaintiffs failed to prove title/ownership in the Defendant's hands at the time of purchase and that the claim was premature, only 11 years having elapsed from the 2006 registration to the 2017 interruption. The Amended Originating Summons was dismissed to the extent of the 2 Acres, but the Plaintiffs were allowed to keep the undisputed ½ acre, with the Defendant directed to execute transfer instruments within 45 days, failing which the Deputy Registrar to effect the transfer. No costs order was made. Dated, signed and delivered virtually at Migori on 23rd January 2023 by Mohammed N. Kullow, Judge.

Key legal issues

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01

Whether the Plaintiffs proved adverse possession over the 2 Acres portion

Holding

No. The claim failed on two limbs: the Plaintiffs did not prove the ownership/title situation at the time of the 1978 purchase (no Green Card or proof of joint ownership produced), and the claim was premature as only 11 years had elapsed from the Defendant's 2006 registration to the alleged 2017 interruption, short of the 12-year statutory period.

Reasoning

The court applied sections 7, 13, 17 and 38 of the Limitation of Actions Act and section 28(h) of the Land Registration Act. Relying on the Court of Appeal decision in Peter Kamau Njau v Emmanuel Charo Tinga, it held that adverse possession runs against an identifiable registered owner from when the right of action accrues. Time ran from the 2006 registration; suit filed in 2017 was 11 years, so possession had not matured. Claims of prior joint ownership were unsubstantiated under section 107(1) of the Evidence Act.

p. 6
02

Whether the 1978 sale agreement was enforceable

Holding

The court found the sale contract null and void for want of capacity to contract, noting no ID or exhibit was produced to prove the Defendant's age, and that the claim could not in any event be specifically performed for failure to obtain Land Control Board consent.

Reasoning

The Defendant contended he was a minor in 1978 while the Plaintiff asserted he was 19; neither produced proof of age such as an identity card. The court held the Law on Contract is clear on capacity and declared the contract null and void and unenforceable. Additionally, the Plaintiffs conceded no Land Control Board consent was obtained within the prescribed timelines, defeating specific performance of the land sale.

p. 5
03

Whether the Plaintiffs were entitled to the reliefs sought

Holding

Partially. Having failed to prove adverse possession over the 2 Acres, the Plaintiffs were not entitled to the reliefs sought save for the undisputed ½ acre, which the Defendant acknowledged was rightfully given to them and offered to transfer.

Reasoning

The court dismissed the Amended Originating Summons to the extent of the 2 Acres but preserved the Plaintiffs' occupation of the ½ acre. It directed the Defendant to execute transfer instruments for the ½ acre within 45 days, with the Deputy Registrar to effect the transfer in default, recognizing the Defendant's own concession on the undisputed portion.

Legal principles established

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  • A claim of adverse possession runs only against a clearly identifiable title holder; possession must be open, continuous and uninterrupted for 12 years against a registered owner before rights accrue.
  • A contract entered into by a party without capacity to contract is null and void and unenforceable.

Court orders

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  1. 1.The Amended Originating Summons dated 16th November, 2021 is dismissed to the extent of the 2 Acres portion.
  2. 2.The Plaintiffs to keep the undisputed ½ an acre which they have been using and which the Defendant acknowledged was rightfully given to them.
  3. 3.The Defendant is directed to execute transfer instruments in relation to the ½ an acre for purposes of transfer and registration in the Plaintiffs' names within 45 days from the date of the judgment.
  4. 4.In default, the Deputy Registrar is directed to effect the said transfer instruments for purposes of transfer and registration in the Plaintiffs' names.

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22, Laws of Kenya)sections 7, 13, 17 and 38(1) and (2)
  • Land Registration Actsection 28(h)
  • Evidence Actsection 107(1)

Cases cited (1)

  • Peter Kamau Njau vs. Emmanuel Charo Tinga
    Civil Appeal No. 29 of 2016 (unreported)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (Originating Summons under the Limitation of Actions Act and Land Registration Act)

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, "Okello & another v Okello (Environment & Land Case 831 of 2017) [2023] KEELC 536 (KLR)", Case Analysis (2023). Environment & Land Case 831 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/536/eng@2023-01-23

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