Isatsiro v Mary & 2 others
The bottom line
#A Kenyan court ruled that people who bought and occupied land over 30 years ago own it, even though the new registered titleholder sued to evict them.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants bought portions of the suit land from the original registered owner
The court found, on the land sale agreements produced, that the defendants bought portions of the suit land as described in those agreements
The court examined the land sale agreements produced by the defendants: the 1988 agreement with DW4 (1 acre, Kshs 22,400), the 1988 agreement with the 2nd defendant (½ acre, Kshs 10,600 plus crops), and the 1985 agreement relating to the 3rd defendant's father's purchase. PW2's claim of a tenancy was unsupported by any written tenancy agreement. The court preferred the documentary evidence of sale.
Whether the transfer of the entire suit land to the plaintiff was illegal and fraudulent
The transfer of the entire suit land to the plaintiff on 15.6.2020 was fraudulent and illegal
The defendants obtained Land Control Board consent for subdivision and transfer in 1990, which PW2 did not deny. The defendants had been in occupation since 1988/1990, which both the plaintiff and PW2 admitted. The land was therefore subject to overriding interests under section 28 of the Land Registration Act when transferred to the plaintiff.
Whether the defendants acquired title by adverse possession
The defendants acquired title to their respective portions by adverse possession, having been in peaceful, open and uninterrupted occupation for over 12 years as of right
Applying the ingredients of adverse possession (nec vi, nec clam, nec precario) as set out in Francis Gicharu v Peter Njoroge Mairu, the court found the defendants entered in 1988/1990, developed the land, built homes and resided thereon. PW2 took no step to assert his title after the alleged tenancy expired. More than 12 years elapsed before the 2020 transfer, extinguishing the original owner's title.
Whether the plaintiff is entitled to eviction and vacant possession
The plaintiff is not entitled to the relief sought in the plaint
Under section 7 of the Limitation of Actions Act, no action to recover land may be brought after 12 years. The cause of action arose in 1988 and 1990 when the defendants entered the land. By 2020, more than 12 years had elapsed, the original owner's title was extinguished and he had no good title to pass to the plaintiff.
Whether the defendants are entitled to the relief sought in the counterclaim
Each defendant is entitled to the portion occupied by adverse possession, with sizes determined from the land sale agreements despite their omission from the counterclaim
Although the counterclaim did not indicate the sizes of the portions claimed, the court derived them from the land sale agreements: 1 acre for the 1st defendant, ½ acre for the 2nd defendant and 75/76 feet by 24 feet for the 3rd defendant. The 3rd defendant's agreement referenced parcel 668, but evidence showed he occupied and developed parcel 669.
Legal principles established
#- Where a purchaser has been in open, exclusive occupation of purchased land for over 12 years, the original owner's title is extinguished and the land transferred thereafter is subject to an overriding interest under section 28 of the Land Registration Act
- A transfer of land made in the face of existing land sale agreements subjected to Land Control Board consent, and in view of the purchasers' occupation, is fraudulent and illegal
Court orders
#- 1.The plaintiff's suit is dismissed with no order as to costs
- 2.Judgment entered for the defendants on the counterclaim: a declaration that each defendant has acquired title by adverse possession to their respective portions of L.R. No. Kakamega/Shiru/669, namely 1 acre for the 1st defendant, ½ acre for the 2nd defendant and 76 ft by 24 ft for the 3rd defendant
- 3.An order for transfer by the plaintiff of one (1) acre, half (1/2) acre and 76ft by 24 ft of L.R. No. Kakamega/Shiru/669 in favour of the 1st, 2nd and 3rd defendants respectively, and in default the Deputy Registrar of the court to sign the requisite documents to effect the transfer
- 4.Each party to bear own costs of the counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (as the court seized of the land dispute); judgment delivered pursuant to Order 21 Rules 4 and 5 Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isatsiro v Mary & 2 others", Case Analysis (2023). Environment & Land Case E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19913/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.