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ELCDismissedEnvironment & Land Case 749 of 2017 (Formerly Kisii ELC Case No. 446 of 2013 (O.S))· [2023] KEELC 15936 (KLR)

Otieno (Suing as the personal representative of Johana Kawa Nyagigo & Benjamin Otieno Kawa (Both Deceased) v Odira & 2 others

Environment and Land Court
16 February 2023
MKMohammed N. Kullow
3,693 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Migori court dismissed a family's adverse possession claim, ruling the 12-year clock only starts after jointly-owned land is subdivided into individual titles.

What this practically means

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Executive summary

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The plaintiff, as personal representative of the estates of Johana Kawa Nyagigo and Benjamin Otieno Kawa, sued by Originating Summons seeking a declaration that the estates had acquired approximately 18 hectares of LR Nos Kanyamkago/Kajulu/2063 and 2064 by adverse possession, plus preservatory injunction orders. The original parcel No 128 was registered in the names of three owners as tenants in common (shares of ½, ¼ and ¼). The plaintiff contended that a 1998 family agreement reduced the Osure Nyagigo family's entitlement to about 5 hectares and that his family had occupied the balance openly for over 50 years. The 1st and 2nd Defendants maintained that the 2012 subdivision followed the original registered shares, that pre-subdivision occupation by co-owners was not adverse, and that the claim was premature. The 3rd Defendant did not participate. After trial, the court found the land was held in common with distinct shares, rejected the assertion that the whole land belonged to Johana Kawa, and held that time for adverse possession only begins to run upon subdivision of a common title and issuance of individual titles. Since subdivision occurred in 2012 and the suit was filed in 2013, the statutory 12-year period had not crystallised. The court also held that long possession is not necessarily adverse possession and that a claimant cannot simultaneously claim adverse possession and challenge the registered owner's title. The Originating Summons was dismissed with costs to the 1st and 2nd Defendants, and the plaintiff's family was ordered to vacate the occupied portion of parcel 2063 within 90 days, any eviction to comply with section 152E of the Land Act.

Key legal issues

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01

Whether adverse possession was proved

Holding

Not proved; the claim was premature and the plaintiff failed to demonstrate dispossession of the 2nd Defendant's title

Reasoning

The original parcel was held by three registered owners as tenants in common with distinct shares. All families freely occupied the land pending subdivision, so occupation was not adverse. Time could only run against individual titles upon the 2012 subdivision; suit filed in 2013, well before 12 years elapsed. The plaintiff also gave three inconsistent accounts of when possession became adverse and could not show wrongful dispossession of the 2nd Defendant's rightful share.

p. 7
02

Whether the plaintiff was entitled to the reliefs sought

Holding

Not entitled, having failed to prove adverse possession

Reasoning

The reliefs (declaration of title by adverse possession and injunction) were consequential on proof of adverse possession. Since the court found the claim unproved and premature, the declaratory and injunctive reliefs could not issue. Costs followed the event, with the 1st and 2nd Defendants entitled to costs of the suit.

p. 7

Legal principles established

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  • Time for adverse possession of land held by co-owners as tenants in common only begins to run upon subdivision of the common title and issuance of individual titles
  • A claimant cannot simultaneously claim adverse possession and challenge the title of the registered owner; one cannot adversely acquire that which belongs to him
  • Long possession is not necessarily adverse possession; the claimant must prove dispossession or discontinuance of possession by the title holder for the statutory period

Court orders

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  1. 1.The Originating Summons dated November 7, 2013 is dismissed with costs to the 1st and 2nd Defendants
  2. 2.The Plaintiff and beneficiaries/dependants of the estate of the late Johana Kawa Nyagigo and Benjamin Otieno Kawa are ordered to vacate the portion of LR No Kanyamkago/Kajulu/2063 which they occupy within 90 days from the date of the Judgment
  3. 3.Any eviction should strictly comply with the statutory provisions of section 152E of the Land Act

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17 and 38(1) and (2)
  • Land Registration ActSection 28(h)
  • Land ActSection 152E

Cases cited (2)

  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR

    Elements of adverse possession: nec vi, nec clam, nec precario and animus possidendi

  • Wambugu —v- Njuguna
    (1983) KLR 173

    Proof of adverse possession turns on dispossession or discontinuance of possession by the title holder, not mere long possession

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (claim for adverse possession over land)

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, "Otieno (Suing as the personal representative of Johana Kawa Nyagigo & Benjamin Otieno Kawa (Both Deceased) v Odira & 2 others", Case Analysis (2023). Environment & Land Case 749 of 2017 (Formerly Kisii ELC Case No. 446 of 2013 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15936/eng@2023-02-16

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