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ELCAllowedEnvironment & Land Case 85 of 2021· [2023] KEELC 16538 (KLR)

Bwana v Mamboleo & another

Environment and Land Court of Kenya
28 March 2023
JKJM Kamau
4,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a buyer 3.5 acres by adverse possession, ruling that an unwritten 1986 land sale was valid and 12+ years of open occupation extinguished the owners' title.

What this practically means

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Executive summary

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The plaintiff, Ziruel Ondicho Bwana, brought an Originating Summons (converted by consent into a plaint) seeking a declaration that the defendants' right to recover 3.5 acres out of L.R. No. Mwongori Settlement Scheme/146 was barred under the Limitation of Actions Act, registration as proprietor, transfer instruments, and a permanent injunction. He claimed he bought a 50 by 100 feet portion from Sabina Obonyo Magare in 1980 and a further 3.3 acres from her in 1986, occupying and developing the land openly since then, while the defendants, the vendor's children, transmitted the whole original parcel to themselves after her death in 1993. The 1st Defendant admitted the 1980 sale but denied the 1986 sale of 3.5 acres; the 2nd Defendant and his chief witness disputed the extent of occupation. The court discredited the 1st Defendant, who disowned his own advocate and pleadings in Keroka PMCC ELC No. 28 of 2020, and the Senior Chief, whose testimony contradicted the defendants' own admissions about trees and a fish pond. The court framed the main issue as whether the unwritten 1986 sale could confer legal rights. Relying on Peter Mbiri Michuki, it held Section 3(3) of the Law of Contract Act, effective 2003, did not apply to the pre-2003 oral contract, and that part performance - possession, fencing and development - satisfied the proviso. Applying Wambugu v Njuguna, Kasuve v Mwaani and Githu v Ndeete, it found the plaintiff had proved adverse possession on a balance of probabilities. Judgment was entered for the plaintiff: declaration of extinguished title, registration and rectification of the register, execution of transfer documents (with the Deputy Registrar empowered in default), permanent injunction, and costs to the plaintiff.

Key legal issues

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01

Validity of the unwritten 1986 sale agreement

Holding

The oral sale agreement did not offend the Law of Contract Act because Section 3(3) came into force in 2003, and in any event the proviso on part performance was satisfied

Reasoning

The court relied on Peter Mbiri Michuki v Samuel Mugo Michuki, noting the pre-2003 proviso to Section 3(3) saved suits where an intending purchaser in part performance took possession or, being in possession, did acts in furtherance of the contract. The two conditions are alternative, not concurrent. The plaintiff proved open, continuous and uninterrupted actual or constructive possession since 1980 and 1986, including fencing and development.

p. 7
02

Acquisition of title by adverse possession

Holding

The plaintiff proved adverse possession of the 3.5 Acres; the Defendants' right to recover was extinguished under the Limitation of Actions Act

Reasoning

Applying Wambugu v Njuguna and Kasuve v Mwaani Investment Limited, the court assessed whether the title holder was dispossessed or discontinued possession for the statutory period. The plaintiff occupied openly, exclusively and without interruption for over 12 years, the portion was identifiable by fencing and development, and transmission of the land to the defendants' names did not interrupt the possession per Githu v Ndeete.

p. 8
03

Credibility of the Defendants' evidence

Holding

The 1st Defendant and the 2nd Defendant's witness (the Senior Chief) were found dishonest and their evidence rejected

Reasoning

The 1st Defendant falsely claimed the plaintiff had filed Keroka PMCC ELC No. 28 of 2020 when documents showed he was the plaintiff, and disowned his advocate despite a signed verifying affidavit. The Senior Chief contradicted the defendants' own admissions about trees planted and the fish pond, and was found to be a very unreliable and dishonest witness.

p. 5

Legal principles established

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  • Section 3(3) of the Law of Contract Act, which came into effect on 1 June 2003, does not apply to oral contracts for sale of land concluded before its commencement
  • Possession taken in part performance of an oral contract for sale of land, with acts in furtherance such as development, satisfies the proviso to the former Section 3(3)
  • A change of ownership of land occupied by a person in adverse possession does not interrupt that adverse possession
  • A claimant may claim adverse possession of a portion only of land, provided possession of that portion is exclusive and identifiable

Court orders

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  1. 1.Declaration that the Defendants' right to recover 3.5 Acres out of L.R. No. Mwongori Settlement Scheme/146 is barred under the Limitations of Actions Act Cap 22 and title thereto extinguished
  2. 2.Plaintiff to be registered as proprietor of the 3.5 Acres out of L.R. No. Mwongori Settlement Scheme/146 and the Register rectified to reflect him as lawful owner
  3. 3.Defendants directed to execute the Application for Land Control Board consent, Transfer documents and other Transfer Instruments to facilitate sub-division and registration of the 3.5 Acres in the Plaintiff's name
  4. 4.In the alternative, Deputy Registrar mandated and authorized to execute the relevant Transfer Instruments, Application for Land Control Board consent, Mutation and Transfer
  5. 5.Permanent Injunction restraining the Defendants from interfering with the Plaintiff's peaceful possession and occupation of the 3.5 Acres
  6. 6.Defendants to pay the Plaintiff's costs of the suit
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over claims for declaration of adverse possession, rectification of register and injunction relating to 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, "Bwana v Mamboleo & another", Case Analysis (2023). Environment & Land Case 85 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16538/eng@2023-03-28

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