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ELCPartially AllowedEnvironment & Land Case 25 of 2021 (Originally Kisumu 33 of 2018 (O.S.))· [2023] KEELC 16878 (KLR)

Saka & 2 others v Otieno & 2 others

Environment and Land Court of Kenya
20 April 2023
AKA. Y. Koross
3,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Siaya court ruled that a family living on land for decades without permission legally owns it, even after the registered owner sold it to a buyer.

What this practically means

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Executive summary

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The plaintiffs, widow and children of Percival Saka Abuor, sued the 1st defendant (Percival's sister and administrator of their father Abuor Nyaseme's estate), the 2nd defendant (purchaser) and the estate itself, claiming title to East Gem/Ramula 206 by adverse possession. The 1st defendant transferred the suit property to herself in 1999 and sold it to the 2nd defendant and his son Onyango, registered in 2012. The plaintiffs asserted occupation since 1965 by marriage, uninterrupted for 52 years. The defendants relied on prior proceedings: Maseno PMCC 290 of 2010 (eviction orders against the 1st plaintiff), Kisumu HC Succession Cause No. 198 of 1999 (Majanja J upholding the 2nd defendant as bona fide purchaser under Section 93 of the Law of Succession Act) and a 2017 order ceding one acre to the plaintiffs. Koross J struck out the claim against the 1st and 3rd defendants, holding adverse possession lies only against a registered proprietor. The court held the prior proceedings did not determine the adverse possession claim, Section 28(h) of the Land Registration Act preserving adverse possession as an overriding interest. Permission ceased on the deceased's death on 31/12/1978; the plaintiffs' rights accrued on 31/12/1990, before both the 1st defendant's title and the 2nd defendant's purchase. Finding the 1st defendant's testimony inconsistent and untruthful, the court declared the 2nd defendant's and Onyango's titles extinguished, ordered registration of the plaintiffs as absolute proprietors, directed the order to serve as an instrument of transfer, and awarded costs against the 2nd defendant.

Key legal issues

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01

Whether prior probate and eviction proceedings barred the adverse possession claim

Holding

The prior proceedings did not determine the adverse possession claim; the succession cause ruling on bona fide purchase did not extinguish the plaintiffs' overriding interest

Reasoning

The court held the order allegedly from Kisumu HC Succession Cause No. 148 of 1999 referenced a different parcel (Gem/Ramula/205) and had no consequence. The 198 of 1999 ruling under Section 93 of the Law of Succession Act protected bona fide purchasers, but Section 28(h) of the Land Registration Act preserves adverse possession as an overriding interest defeating such titles.

p. 5
02

When time began to run for adverse possession

Holding

Time began to run on 31/12/1978 when the deceased died and permission ceased; the plaintiffs' rights accrued on 31/12/1990 after 12 years

Reasoning

The 1st plaintiff entered in 1965 by marriage with the deceased's permission. On the deceased's death on 31/12/1978, permission ceased and possession became adverse. Twelve years later, on 31/12/1990, the plaintiffs' rights as adverse possessors accrued, before the 1st defendant's 1999 self-transfer and the 2012 sale to the 2nd defendant.

p. 7
03

Whether the plaintiffs proved adverse possession to the required standard

Holding

Yes - their occupation was open, continuous, peaceful and without permission for over 12 years, extinguishing the registered owners' titles

Reasoning

The court found PW1's testimony consistent and the 1st defendant's evidence inconsistent and untruthful. There was no evidence of force, secrecy or permission after 31/12/1990. The 2nd defendant knew of the plaintiffs' residence when purchasing. Any person registered as proprietor after 31/12/1990 held the land in trust for the plaintiffs.

04

Joinder of the 1st and 3rd defendants

Holding

The claim was struck out against the 1st and 3rd defendants because adverse possession lies only against a registered proprietor

Reasoning

Before determining the issues, the court addressed joinder. The 1st defendant (administrator/vendor) and the 3rd defendant (the estate) were not registered proprietors of the suit property at the material time, so the claim was non-suited against them, with no costs given their close family relations with the plaintiffs.

p. 5

Legal principles established

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  • Adverse possession is an overriding interest under Section 28(h) of the Land Registration Act and runs against current title holders and all their predecessors in title
  • Permission granted by a deceased owner ceases on death, from which time possession becomes adverse and time begins to run
  • A purchaser for value takes subject to overriding interests including adverse possession

Court orders

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  1. 1.A declaration that the title in the names of Jacob Thomas Mboya Onyango and Habakuk Onyango Abogno in respect of East GEM/Ramula 206 has been extinguished by the plaintiffs' adverse possession for more than 12 years in terms of the Limitation of Actions Act
  2. 2.A declaration that the plaintiffs have become entitled by adverse possession to East GEM/Ramula 206
  3. 3.An order that the Land Registrar Siaya register the plaintiffs as absolute proprietors of East GEM/Ramula 206 in place of Jacob Thomas Mboya Onyango and Habakuk Onyango Abogno
  4. 4.A direction that the order herein shall be an instrument of transfer of ownership of the whole of East GEM/Ramula 206 to the plaintiffs
  5. 5.The costs of the suit to the plaintiffs shall be borne by the 2nd defendant
  6. 6.The claim of adverse possession against the 1st and 3rd defendants struck out with no orders as to costs

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13(1) and (2), 17, 38(1) and (2)
  • Land Registration ActSections 25, 28, 28(h)
  • Law of Succession ActSection 93

Cases cited (5)

  • Mtana Lewa v Kahindi Ngala
    (2015) eKLR

    Essential prerequisites of adverse possession - possession neither by force, stealth nor licence; adequate in continuity, publicity and extent

  • Mwangi Githu v Livingstone Ndeete
    [1980] eKLR

    A registered purchaser for value takes subject to rights of squatters; time ceases to run when owner asserts his right or it is admitted

  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    (2016)

    Adverse possession claim lies against a registered proprietor and not otherwise

  • Musa Nyaribari Gekone & 2 others v Peter Miyienda & another
    [2015] eKLR

    Purchasers' rights under Section 93 of the Law of Succession Act can be defeated by overriding rights

  • Ogak v Auma & another
    (Environment & Land Case 11 of 2021) [2023] KEELC 65 (KLR) (19 January 2023)

    Permission ceases on the death of the grantor, from which time possession becomes adverse

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act; claim brought under Sections 7, 13, 17 and 38 of the Limitation of Actions Act

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, "Saka & 2 others v Otieno & 2 others", Case Analysis (2023). Environment & Land Case 25 of 2021 (Originally Kisumu 33 of 2018 (O.S.)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16878/eng@2023-04-20

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