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ELCDismissedEnvironment & Land Case 44 of 2019· [2023] KEELC 16567 (KLR)

Wamore v Omar

Environment and Land Court of Kenya
28 March 2023
DOD. O. Ohungo
1,392 words in judgment
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The bottom line

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The Environment and Land Court dismissed a Kenyan farmer's adverse possession claim because joint sugarcane contracts and earlier court cases stopped the 12-year clock.

What this practically means

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Executive summary

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The plaintiff filed an originating summons dated November 11, 2016 claiming 3 acres out of S/Wanga/Ekero/1441 by adverse possession. He alleged he purchased the land from the late Beda Mona Omari in 1990, took possession, planted sugarcane and subsistence crops, and remained in continuous use. He entered joint sugarcane-growing contracts with the defendant and Mumias Sugar Company in 1996 and 2000; disputes led to Mumias SRMCC No 328 of 2002, decided in 2003, and an appeal determined in 2015. The defendant denied any purchase, asserting the land devolved to him through succession from his father John Marembe Siachi, with title 1441 issued in 1994, and that the plaintiff's subordinate court judgment was overturned on appeal. The court framed a single issue: whether the plaintiff had established adverse possession. Applying Kimani Ruchire, Wilson Kazungu Katana and Public Trustee v Wanduru Ndegwa, the court held that the joint cane contracts negated exclusive, adverse occupation and intention to dispossess, so time did not run between 1996 and 2000; further, the litigation between 2002 and 2015 interrupted possession, so the 12-year period had not accrued by the 2016 filing. The originating summons was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff established adverse possession

Holding

No - the requisite 12 years of continuous, exclusive, adverse possession was not established before the suit was filed in 2016

Reasoning

The plaintiff's occupation was permissive and shared: he entered joint sugarcane contracts with the defendant in 1996 and 2000, negating exclusivity and animus to dispossess. Litigation in Mumias SRMCC No 328 of 2002 and its appeal (2002-2015) further interrupted possession. Time therefore never ran continuously for 12 years before the 2016 filing.

Legal principles established

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  • Entry under a sale agreement is permissive, but once a purchaser pays the full purchase price, time for adverse possession runs from the date of final payment
  • Joint occupation or joint commercial contracts with the registered owner negate adverse possession and exclude intention to dispossess; time does not run during such periods
  • Litigation between the parties over the land interrupts the running of time for adverse possession

Court orders

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  1. 1.The originating summons is dismissed with costs to the defendant

Authorities

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Legislation

  • Limitation of Actions Actnot specified (referred to as 'the Act')

Cases cited (4)

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

    Restating the essentials of adverse possession

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

    Tenets of adverse possession - nec vi, nec clam, nec precario; continuous possession known to the owner

  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR

    Time runs for a purchaser in possession from final payment of purchase price

  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR

    Claimant must show exclusive, open, uninterrupted, adverse possession and intention to dispossess

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (adverse possession)

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, "Wamore v Omar", Case Analysis (2023). Environment & Land Case 44 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16567/eng@2023-03-28

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