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ELCDismissedKakamega ELC Appeal ( memorandum of appeal filed January 27, 2022)· [2023] KEELC 720 (KLR)

Wisayi & another v Makongo & 4 others (Environment and Land Appeal E002 of 2022) [2023] KEELC 720 (KLR)

Environment and Land Court
14 February 2023
DOD. O. Ohungo
2,216 words in judgment
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The bottom line

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The Environment and Land Court in Kakamega dismissed landowners' appeal, confirming that title certificates stand unless fraud is proved and adverse possession requires a full 12 years.

What this practically means

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Executive summary

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This first-instance (first appeal) ELC judgment at Kakamega by D. O. Ohungo J, delivered on February 14, 2023, concerns an appeal against a subordinate court judgment allowing the suit of the first to four respondents (plaintiffs), who are registered owners of four parcels being subdivisions of Isukha/Virhembe/1167, allocated to them through Nairobi High Court Succession Cause No 495 of 2011. The appellants (defendants) had filed a defence and counterclaim arguing that the first appellant purchased one acre from the fifth respondent under a 1997 agreement and had been in adverse possession for 21 years, seeking cancellation of the titles and registration of that acre in his name. The trial court (Hon D Alego SPM) entered judgment for the respondents after the parties, by consent, adopted their pleadings and documents as evidence and agreed to file written submissions; the appellants never filed submissions, and judgment was delivered on December 21, 2021. Two grounds of appeal were raised: denial of an opportunity to be heard and failure to pronounce itself on the counterclaim. Ohungo J held that the mention date fixing judgment was taken in the presence of the appellants' counsel, and that the appellants' remedy for failure to file submissions lay in the subordinate court, not in an appeal. On the merits, the respondents' titles were conclusive under Sections 24 and 26 of the Land Registration Act, and the first appellant's adverse possession claim failed because time could not run before the administrator was appointed on August 11, 2011, as the registered proprietor died in 1985, so the requisite 12 years had not accrued. The appeal was dismissed with costs to the respondents. Tags: land-law, adverse-possession, fair-hearing, burden-of-proof, remedies.

Key legal issues

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01

Fair hearing - whether judgment could be delivered when the appellants had not filed written submissions

Holding

The appellants were granted an adequate opportunity to be heard; their failure to file submissions was self-inflicted and the correct remedy lay in the subordinate court.

Reasoning

The parties recorded a consent adopting pleadings and documents as evidence, with both cases deemed closed, and agreed to file submissions within three weeks. The mention of November 15, 2021 was fixed in the presence of counsel for the appellants. Having failed to comply with the consent, the appellants ought to have sought more time or setting aside from the subordinate court rather than appealing. The court therefore found no denial of the right to be heard.

p. 4
02

Validity of the respondents' titles

Holding

The respondents' titles, arising from a certificate of confirmation of grant, were conclusive and not impeached.

Reasoning

The respondents were registered proprietors of the four parcels, subdivisions of Isukha/Virhembe/1167, having acquired them through High Court Succession Cause No 495 of 2011. Section 24 of the Land Registration Act confers rights of possession and Section 26 obligates the court to treat certificates of title as conclusive evidence unless fraud or misrepresentation under Section 26(1)(a) or (b) is proved. The appellants proved no grounds for impeachment; grievances about the succession proceedings belonged before the succession court.

p. 4
03

Adverse possession

Holding

The first appellant's counterclaim for adverse possession failed.

Reasoning

Adverse possession requires non-permissive, actual, open, notorious, exclusive and adverse use for the statutory 12-year period without interruption. Computation of time starts when there is actual or constructive knowledge by the registered proprietor. Likhanga Lukhalo Petro, the registered proprietor, died on May 24, 1985 and no administrator was appointed until August 11, 2011, so time could not run before that date. The 12 years had not accrued by the time the counterclaim was filed on February 5, 2019. Additionally, the fifth respondent was not the registered owner at the material times.

p. 4

Legal principles established

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  • On a first appeal, the court must re-evaluate, re-assess and re-analyse the record and determine whether the conclusions reached by the trial court are to stand, without introducing extraneous matters.
  • Registered proprietors of land are entitled to possession under Section 24 of the Land Registration Act and their certificates of title are conclusive evidence of proprietorship unless the provisos to Section 26(1)(a) or (b) are established.
  • Time in an adverse possession claim runs only from when the registered owner has actual or constructive knowledge of dispossession; where the registered proprietor died intestate and no administrator was appointed, time cannot run against a person incapable of knowing of the dispossession.
  • A claimant who fails to file submissions within an agreed timeline, having been represented at the mention when a judgment date was fixed, cannot contend that he was denied a fair hearing without first seeking recourse from the subordinate court.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (4)

  • Selle & another v Associated Motor Boat Co Ltd & another
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Mbira v Gachuhi
    (2002) IEALR 137
  • Titus Kigoro Munyi v Peter Mburu Kimani
    [2015] eKLR
On appeal from
Subordinate Court (Chief Magistrate's Court, Kakamega)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over appeals from the subordinate court in land matters (ELC Act); the judgment relies on the general mandate of a first appellate court to re-evaluate the evidence and does not cite a specific constitutional provision.

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, "Wisayi & another v Makongo & 4 others (Environment and Land Appeal E002 of 2022) [2023] KEELC 720 (KLR)", Case Analysis (2023). Kakamega ELC Appeal ( memorandum of appeal filed January 27, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/720/eng@2023-02-14

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