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ELCDismissedEnvironment & Land Case 93 of 2019· [2023] KEELC 15673 (KLR)

Dickson Mayabi Okusimba & another (Both suing as legal representatives of the Estate of the Late Henry Okusimba) v Geneveive Nanjala Wanyama & 2 others

Environment and Land Court
21 February 2023
DOD. O. Ohungo
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega dismissed a family's adverse possession claim because they could not prove peaceful, uninterrupted occupation of the land for 12 years.

What this practically means

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Executive summary

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The plaintiffs, legal representatives of the estate of Henry Okusimba (deceased), sought a declaration of adverse possession over parcels East Wanga/Mungángá/1122 and 1123, formerly part of East Wanga/Mungángá/204, contending that the deceased purchased 6 acres from the registered owners in 1971, took possession in 1972, and occupied openly and peacefully for over 12 years. The defendants denied the claim: the first defendant asserted she purchased her parcel in 2002 and obtained title in 2004 with no occupation by the deceased; the second and third defendants conceded the family resided on part of parcel 1122 but argued the occupation was neither continuous nor peaceful, litigation having run until 2009, so 12 years had not elapsed when the suit was filed in 2010. The court, applying the nec vi, nec clam, nec precario standard from Kimani Ruchire v Swift Rutherford as restated in Loise Nduta Itotia v Aziza Said Hamisi, found the plaintiffs failed on multiple fronts: they admitted no possession of parcel 1123; they never produced the alleged sale agreement, so the date of completion of payment - when time would run under Public Trustee v Wanduru Ndegwa - could not be fixed; PW1's evidence of entry in 1971 was unreliable as he was born in 1979; and the history of civil and criminal proceedings, including a 2004 injunction, showed the occupation was not peaceful. The suit was dismissed with no order on costs.

Key legal issues

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01

Whether the deceased acquired title to 6 acres of East Wanga/Mungángá/1122 and 1123 by adverse possession

Holding

Claim failed; adverse possession not established

Reasoning

The plaintiffs admitted no possession of parcel 1123, ending that claim. The alleged sale agreement was never produced; PW2 only translated an unsigned copy, so the date of completion of payment - when time would run - could not be ascertained. PW1's evidence of entry in 1971 was unreliable since he was born in 1979. Multiple civil and criminal suits showed occupation was neither peaceful nor uninterrupted (nec vi, nec clam, nec precario).

p. 4

Legal principles established

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  • Adverse possession requires proof of use of land as of right, nec vi, nec clam, nec precario, with the proprietor's knowledge (actual or constructive) and continuous, unbroken possession
  • Entry and occupation pursuant to a sale agreement is by permission of the proprietor and does not amount to adverse possession; time runs for a purchaser from completion of payment of the purchase price

Court orders

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  1. 1.Plaintiffs' suit dismissed in its entirety
  2. 2.No order on costs

Authorities

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Cases cited (3)

  • Loise Nduta Itotia v Aziza Said Hamisi
    [2020] eKLR

    Restating essentials of adverse possession, quoting Kimani Ruchire v Swift Rutherford

  • Kimani Ruchire vs Swift Rutherford & Co Ltd
    [1980] KLR 10

    Tenets of adverse possession: nec vi, nec clam, nec precario; continuous unbroken possession

  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR

    Time runs in favour of a purchaser from completion of payment of purchase price

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over the transferred Kakamega High Court Civil Suit No 3 of 2010 (OS)

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, "Dickson Mayabi Okusimba & another (Both suing as legal representatives of the Estate of the Late Henry Okusimba) v Geneveive Nanjala Wanyama & 2 others", Case Analysis (2023). Environment & Land Case 93 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15673/eng@2023-02-21

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