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ELCDismissedEnvironment & Land Case 66 of 2019· [2023] KEELC 21345 (KLR)

Ochango (Substituted with his Son and Legal Representative Dixon Athanas Akaka) v Ojango & 2 others

Environment and Land Court
7 November 2023
DOD. O. Ohungo
1,650 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a son's bid to claim family land through adverse possession, confirming the doctrine does not apply between close relatives.

What this practically means

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Executive summary

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Andereya Ochango Ochango filed an originating summons in the High Court on 24th November 2008 claiming entitlement to a 2½ acre portion of Kisa/Wambulishe/330 by adverse possession. After his death on 29th June 2012, Dixon Athanas Akaka was substituted as plaintiff. The suit was transferred to the Environment and Land Court at Kakamega. The claim, as amended, alleged that Andereya was allocated the 2½ acres by his father Samwel Ochango Mulima, occupied it, built seven semi-permanent houses on it, and that the parcel had since been subdivided into Kisa/Wambulishe/2032, 2033 and 2034. The first defendant, Andereya's brother and registered proprietor, denied the claim, asserting he refunded the purchase price when their father sold the parcel to Musa Ashioya and was rewarded with the whole parcel; he contended Andereya's occupation was neither peaceful nor continuous for 12 years and that disputes had been arbitrated, producing a 2008 compensation agreement. The claim against the third defendant was abandoned after his death. The court framed two issues: whether adverse possession was established and whether the reliefs should issue. Applying Richard Wefwafwa Songoi v Ben Munyifwa Songoi on the elements of adverse possession and following Samuel Kihamba v Mary Mbaisi on the inapplicability of the doctrine within families, the court held that Andereya's occupation was permissive family occupation, not hostile dispossession, and that the dispute was essentially an inheritance claim. The suit was dismissed with no order as to costs given the family relationship.

Key legal issues

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01

Whether adverse possession was established against the registered proprietor

Holding

No; the plaintiff's occupation was a continuation of permissive family occupation and could not amount to hostile dispossession

Reasoning

The court found Andereya and the first defendant were brothers raised by their father on the suit parcel. Any possession by Andereya was as a son housed by his father, not wrongful dispossession of the registered proprietor. The claim was essentially one of inheritance entitlement, not adverse possession, so the 12-year statutory period was never established.

p. 3
02

Whether adverse possession can apply within families against close relatives

Holding

No; following Samuel Kihamba v Mary Mbaisi, the doctrine does not apply against close relatives

Reasoning

The court adopted the Court of Appeal's holding in Samuel Kihamba v Mary Mbaisi that applying adverse possession within families would create havoc for families and Kenyan society generally. The present dispute between brothers and their families fell squarely within that principle, defeating the claim.

Legal principles established

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  • Adverse possession does not apply within families against close relatives; permissive family occupation is not hostile possession
  • A claimant must prove hostile title, dispossession or discontinuance of the registered proprietor's possession for 12 years, with open and undisturbed possession

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act following transfer from the High Court

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, "Ochango (Substituted with his Son and Legal Representative Dixon Athanas Akaka) v Ojango & 2 others", Case Analysis (2023). Environment & Land Case 66 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21345/eng@2023-11-07

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