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ELCStruck OutEnvironment & Land Case 17 of 2021· [2023] KEELC 17126 (KLR)

Okoth v Okoth

Environment and Land Court of Kenya
4 May 2023
AKA. Y. Koross
3,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a 60-year land possession claim because it targeted the wrong defendant and family land claims rarely succeed as adverse possession.

What this practically means

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Executive summary

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The plaintiff, a co-wife of the late Habart Okoth Obondo, brought an originating summons against Jenifa Achieng Okoth, her co-wife and the mother/administratrix of James Ouma Okoth, the registered proprietor of North Sakwa/Ajigo/470. She claimed one half of the suit property by adverse possession or, alternatively, under a customary trust. The defendant died before entering appearance; her daughter Christine Juma Omondi filed a replying affidavit and later testified, but the court found she had not properly substituted the deceased defendant under Order 24 Rule 4 of the Civil Procedure Rules. The court framed three issues: competency of the suit against the deceased defendant, adverse possession, and customary trust. It held that adverse possession lies only against a registered owner; the claims were directed at the deceased defendant personally rather than at James or his estate, and the proper defendant was the administratrix of James's estate. The suit against the deceased defendant abated one year after her death and was struck out as incompetent. On the merits, the court accepted that the plaintiff had been in open, peaceful, exclusive possession of the disputed portion for some 60 years, but held she failed to prove dispossession of James or discontinuance of his possession, and that adverse possession does not apply within families against close relatives. The customary trust claim also failed: Bonyo had allocated parcels to all his male heirs with no intention that James hold the land in trust for the plaintiff. The suit was struck out with the plaintiff bearing her own costs, the parties being close relatives and the suit having abated.

Key legal issues

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01

Competency of suit against deceased defendant

Holding

Suit against the deceased defendant in her personal capacity was incompetent; adverse possession is maintainable only against the registered proprietor (James), and the proper defendant was the administratrix of his estate; the suit abated for want of substitution under Order 24 Rule 4

Reasoning

The court found the plaintiff's claims were directed at the deceased defendant personally, not at James or his estate. Since adverse possession lies only against a registered owner, the proper defendant was the administratrix of James's estate under Order 3 Rule 7. DW2's limited grant did not effect proper substitution, so the suit abated one year after the defendant's death.

p. 4
02

Adverse possession

Holding

Although the plaintiff was in open, peaceful, exclusive possession for about 60 years, she failed to prove dispossession of James or discontinuance of his possession, and family-related claims of adverse possession are disfavoured

Reasoning

The court accepted the plaintiff's long, peaceful occupation as fact but held that possession claimed 'as of right' under a family allocation negates adverse possession, which requires dispossession or discontinuance. Binding appellate authority discourages applying the doctrine within families against close relatives.

p. 6
03

Customary trust

Holding

Claim of customary trust failed because the plaintiff did not discharge the burden of proving an intention that James hold the land in trust for her

Reasoning

Under sections 25 and 28 of the Land Registration Act customary trust overrides registered title, but the onus of proving a trust lies on the party asserting it. Bonyo, a senior chief, allocated over 40 parcels to his male heirs with no indication that James held the suit property in trust for the plaintiff.

p. 6

Legal principles established

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  • A claim for adverse possession can only be maintained against a registered owner
  • Adverse possession requires proof that the title holder was dispossessed or discontinued possession for the statutory period
  • The doctrine of adverse possession does not apply within families against close relatives
  • The onus lies on a party relying on the existence of a trust to prove it through evidence; courts will not imply a trust save in case of absolute necessity

Court orders

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  1. 1.The plaintiff's suit is hereby struck out
  2. 2.The plaintiff shall bear her own costs of this suit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 38
  • Land Registration ActSection 28
  • Land Registration ActSection 25(b)
  • Civil Procedure RulesOrder 3 Rule 7
  • Civil Procedure RulesOrder 24 Rule 4 and Order 24 Rule 4(1)

Cases cited (18)

  • Maweu v Liu Ranching & Farming Cooperative Society
    [1985] eKLR

    Adverse possession is a fact to be observed upon land

  • Gachuma Gacheru v Maina Kabuchwa
    [2016] eKLR Civil Appeal No. 164 of 2011

    Cited Maweu on adverse possession

  • Gabriel Mbui v Mukindia Maranya
    [1993] eKLR

    Adverse character of possession must be established as a fact with intention to hold adversely

  • Mbira v Gachuhi
    (2002) IEALR 137

    Elements an adverse possessor must prove

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

    Identification of the land in possession is integral to proving adverse possession

  • Githu v Ndele
    [1984] KLR 776

    Identification of land in adverse possession

  • Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others
    [2004] eKLR

    Requirements of exclusive, open, uninterrupted possession for 12 years; proper defendant as administratrix

  • Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another
    [2018] eKLR

    Settled the applicability and elements of customary trust

  • Alice Wairimu Macharia v Kirigo Philip Macharia
    [2019] eKLR

    Customary trust claim

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

    Adverse possession can only be maintained against a registered owner

  • Sisto Wambugu v Kamau Njuguna
    [1983] eKLR

    Cited Littledale on dispossession and discontinuance of possession

  • Littledale v Liverpool College
    [1900] 1 Ch 19, 21

    Assessing adverse possession by dispossession or discontinuance of the title holder's possession

  • Mbui v Maranya
    [1993] KLR 726

    Family-related adverse possession claims to be treated carefully

  • Rodgers Mwamboje v Douglas Mwamboje
    [2014] eKLR

    Family-related adverse possession claims

  • John Baraza Ojiambo v Veronica Auma Ojiambo & 3 others
    [2013] eKLR

    Family-related adverse possession claims

  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR

    Adverse possession does not apply within families against close relatives

  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR

    Claimant cannot found claim on gift and also assert adverse possession

  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017]

    Onus lies on party relying on existence of a trust to prove it

Jurisdiction invoked
Articles 162(2)(b) and 165 of the Constitution read with the Environment and Land Court Act (court seized of land dispute; judgment does not expressly cite the provision)

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, "Okoth v Okoth", Case Analysis (2023). Environment & Land Case 17 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17126/eng@2023-05-04

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