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ELCDismissedEnvironment & Land Case 62 of 2018· [2023] KEELC 19811 (KLR)

Nanzushi (Suing on her own and in her capacity as the administratix of the Estate of Joseph Nanzushi Keya – Deceased) v Mudogo & 3 others

Environment and Land Court
18 September 2023
DOD. O. Ohungo
1,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kakamega court dismissed a family's 50-year land claim because they couldn't prove they fully paid for the property decades ago.

What this practically means

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Executive summary

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The plaintiff, widow and administratrix of the estate of Joseph Nanzushi Keya, claimed by Amended Originating Summons that she and her late husband purchased 14 acres of Butsotso/Esumeyia/112 in 1973 from Philip Mutoko Mukhwana, the defendants' father, for KShs 6,000, took possession, and thereby acquired title by adverse possession upon expiry of 12 years from 1973. She further alleged that the first defendant fraudulently procured succession and transferred the land jointly to the defendants. The defendants denied the sale, asserting the plaintiff and her husband were caretakers under a 1972 gentleman's agreement, and counterclaimed for orders stopping her farming the land and a permanent injunction. After oral evidence from both sides and written submissions, the court framed two issues: whether adverse possession was established and whether the reliefs sought should issue. Applying the Court of Appeal's guidance in Richard Wefwafwa Songoi and Wambugu v Njuguna, and Public Trustee v Wanduru Ndegwa, the court held that entry under a sale agreement is permissive and time runs only from full payment of the purchase price, which the plaintiff failed to prove. The court further held that a claimant cannot simultaneously claim adverse possession and attack the registered proprietor's title. The plaintiff's case was dismissed; the counterclaim succeeded and a permanent injunction was issued restraining the plaintiff from entering or farming the suit property, with costs to the defendants.

Key legal issues

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01

Whether adverse possession was established

Holding

Adverse possession was not established; the plaintiff's possession originated from a sale agreement and payment was not proven, and she inconsistently attacked the defendants' title

Reasoning

Entry under a sale agreement is permissive, not adverse. Time runs only from full payment of the purchase price, which the plaintiff failed to prove beyond asserting the price was KShs 6,000. Further, the plaintiff alleged the defendants' title was fraudulently obtained, which is inconsistent with a claim of adverse possession against a valid title.

p. 3
02

Whether the defendants' counterclaim should be allowed

Holding

The counterclaim succeeded; a permanent injunction was issued against the plaintiff

Reasoning

The defendants proved registration as proprietors, confirmed by certified copy of the register and official search. As registered proprietors they enjoy rights under Section 24 of the Land Registration Act, and their title is conclusive under Section 26 absent established provisos. The plaintiff having failed, the counterclaim for injunction was merited.

p. 4

Legal principles established

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  • Possession under a sale agreement is by permission and does not amount to adverse possession; time runs for a purchaser only from full payment of the purchase price
  • A claimant cannot simultaneously claim adverse possession and attack the validity of the registered proprietor's title

Court orders

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  1. 1.The plaintiff's case is dismissed
  2. 2.A permanent injunction is issued restraining the plaintiff, her agents, servants, and representatives from entering or farming the parcel of land known as Butsotso/Esumeyia/112
  3. 3.The defendants shall have costs of the suit

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (5)

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

    Definition and elements of adverse possession as hostile possession denying the true owner's title

  • Wambugu v Njuguna
    (1983) KLR 173

    Adverse possession contemplates possession and discontinuance; proof assessed by dispossession of title holder for statutory period

  • Benjamin Kamau Murima & 3 Others v Gladys Njeri
    Nairobi CACA No 213 of 1996 (Unreported)

    Cited by plaintiff in support of adverse possession claim

  • Githu vs Ndeete
    CACA No 24 of 1979 (Unreported)

    Cited by plaintiff in support of adverse possession claim

  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR

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

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (implied; not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nanzushi (Suing on her own and in her capacity as the administratix of the Estate of Joseph Nanzushi Keya – Deceased) v Mudogo & 3 others", Case Analysis (2023). Environment & Land Case 62 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19811/eng@2023-09-18

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