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ELCPartially AllowedEnvironment & Land Case E003 of 2022· [2023] KEELC 19913 (KLR)

Isatsiro v Mary & 2 others

Environment and Land Court
21 September 2023
4,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, registered owner of Kakamega/Shiru/669, sued the three defendants for eviction and vacant possession, alleging illegal and fraudulent invasion and acts of waste. The defendants filed a joint defence and counterclaim, asserting they had purchased their respective portions from Peter Isatsiro (the plaintiff's father and original owner) in 1988 and 1990, had been in open and exclusive occupation for over 12 years, and had acquired title by adverse possession. They sought orders compelling transfer of their portions and a permanent injunction. The court framed six issues. On the evidence, it found that the defendants bought portions of the land as described in the land sale agreements produced, and that PW2's claim of a tenancy was unsupported by any written agreement. Land Control Board consent for subdivision had been obtained in 1990 and was not denied. The court held that the transfer of the entire land to the plaintiff on 15.6.2020 was fraudulent and illegal, the land being subject to an overriding interest under section 28 of the Land Registration Act by virtue of rights acquired under the Limitation of Actions Act. Applying section 7 of the Limitation of Actions Act and the principles in Francis Gicharu v Peter Njoroge Mairu, the court found the defendants had acquired title by adverse possession, the original owner's title having been extinguished after 12 years. The plaintiff's suit was dismissed with no order as to costs. Judgment was entered for the defendants on the counterclaim: a declaration of title by adverse possession to portions of 1 acre, ½ acre and 76 ft by 24 ft respectively, an order for transfer (with the Deputy Registrar to sign in default), and each party to bear own costs of the counterclaim.

Key legal issues

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01

Whether the defendants bought portions of the suit land from the original registered owner

Holding

The court found, on the land sale agreements produced, that the defendants bought portions of the suit land as described in those agreements

Reasoning

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.

p. 6
02

Whether the transfer of the entire suit land to the plaintiff was illegal and fraudulent

Holding

The transfer of the entire suit land to the plaintiff on 15.6.2020 was fraudulent and illegal

Reasoning

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.

03

Whether the defendants acquired title by adverse possession

Holding

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

Reasoning

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.

04

Whether the plaintiff is entitled to eviction and vacant possession

Holding

The plaintiff is not entitled to the relief sought in the plaint

Reasoning

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.

p. 7
05

Whether the defendants are entitled to the relief sought in the counterclaim

Holding

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

Reasoning

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

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  • 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

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  1. 1.The plaintiff's suit is dismissed with no order as to costs
  2. 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. 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. 4.Each party to bear own costs of the counterclaim

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 21 Rule 4
  • Civil Procedure Rules, 2010Order 21 Rule 5
  • Land Registration ActSection 28
  • Registered Land Act (Repealed)Section 25(1)
  • Registered Land Act (Repealed)Section 26(1)
  • Limitation of Actions ActSection 7

Cases cited (1)

  • Francis Gicharu v Peter Njoroge Mairu
    [2005] eKLR

    Ingredients of adverse possession: use of the land as of right, nec vi, nec clam, nec precario, with continuous possession

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

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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, "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.