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ELCAllowedEnvironmental and Land Originating Summons E007 of 2022· [2023] KEELC 21560 (KLR)

Electrina Nanjala Waswa v Fednand Nyongesa Wanjala

Environment and Land Court of Kenya
9 November 2023
3,943 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Bungoma court ruled that someone who openly occupies land for over 12 years can win ownership, even against a later registered owner.

What this practically means

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Executive summary

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The Applicant, by Originating Summons dated 29 September 2022 under Sections 7, 17 and 38 of the Limitation of Actions Act, claimed 0.04Ha of land parcel E.Bukusu/N.Nalondo/5714 by adverse possession, alleging she purchased it in 2009 from Isaac Kimawachi Nandhoka and had occupied it openly, peacefully and continuously since, while the Respondent, who purchased the parcel from Wellington Chepkwesi in 2020, never lived on or used it. The Respondent denied the claim, contending the Applicant occupied a different parcel (5068 or 1738), that she bought non-existent land from a person without capacity, and that her claim, filed two years after his occupation, was in bad faith. The court framed three issues: whether title was acquired by adverse possession, when time began to run, and entitlement to the prayers. Relying on green card evidence, the court found the Respondent's witnesses untruthful about the subdivision history, confirming parcel 5714 derived from the land sold to Philip Nandhoka. It held the Applicant's possession, beginning as a purchaser, became adverse on payment of the last instalment in November 2009; time ran continuously for over 12 years; and the Respondent took no positive steps to stop it. Judgment was entered for the Applicant: a declaration of entitlement by adverse possession, an order for transfer (with the Deputy Registrar to execute documents in default), and costs against the Respondent.

Key legal issues

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01

Whether the Applicant acquired title by adverse possession

Holding

Yes - the Applicant was in open, continuous and exclusive occupation from November 2009, over 12 years, extinguishing the Respondent's title

Reasoning

The court found the Applicant entered possession as a purchaser in 2009 and that possession became adverse on payment of the last instalment in November 2009. Documentary evidence (green cards) contradicted the Respondent's claim that the Applicant occupied a different parcel, showing parcel 5714 was a subdivision of 5068, the land sold to Philip Nandhoka. Photographs and credible witness testimony confirmed de facto occupation; the Respondent never asserted his rights to stop time.

02

When time began to run

Holding

Time began running in November 2009 upon payment of the last instalment, not upon the Respondent's registration in 2020/2021

Reasoning

Relying on Maweu v Liu Ranching as approved in Gachuma Gacheru v Maina Kabuchwa, the court held that adverse possession is a fact observed on the land and does not depend on registration of title. Since the Applicant took possession in 2009 and the Respondent took no positive steps to assert ownership, time ran continuously from November 2009 to the filing of the suit on 29 September 2022, exceeding 12 years.

p. 7
03

Whether the Respondent's acts stopped time from running

Holding

No - the Respondent did not assert his rights as registered owner; his destruction of crops did not constitute effective assertion

Reasoning

Citing Peter Kamau Njau v Emmanuel Charo Tinga, the court held that to stop time the owner must take positive steps such as legal proceedings or effective entry. Despite purchasing in 2020, the Respondent did not assert his right; instead his destruction of the Applicant's crops prompted her to seek injunctive relief, so time continued running in her favour.

p. 7

Legal principles established

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  • Time in adverse possession does not begin to run only upon issuance of title; adverse possession is a fact observed upon the land and may commence against a predecessor in title
  • To stop time running, the registered owner must take positive steps to assert his right, such as legal proceedings or effective entry into the land
  • Possession by a purchaser in occupation becomes adverse on payment of the last instalment of the purchase price

Court orders

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  1. 1.Declared that the applicant has become entitled to 0.04Ha parcel of the suit land number E.Bukusu/N.Nalondo/5714 by way of adverse possession and/or by acquiring prescriptive rights thereon
  2. 2.Ordered the respondent to forthwith transfer 0.4Ha comprised in land parcel number E.Bukusu/N.Nalondo/5714 to the applicant, and in default the Deputy Registrar to execute all relevant transfer documents
  3. 3.Costs of the suit to be borne by the respondent

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13
  • Limitation of Actions ActSection 16
  • Limitation of Actions ActSection 17
  • Limitation of Actions ActSection 38(1) and (2)
  • Land Registration Act, 2012Section 28(h)
  • Land Act, 2012Section 7
  • Evidence ActSection 107(1)
  • Civil Procedure ActSection 27

Cases cited (5)

  • Maweu v Liu Ranching and Farming Cooperative Society
    1985 KLR 430

    Possession must be adequate, continuous, public and adverse to the registered owner; time runs from possession, not registration

  • Joseph Macharia Kairu v Kenneth Kimani Muiruri
    (2021) eKLR

    Cited with approval on when time begins to run in adverse possession

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

    Approved Maweu on time running before registration of title

  • Peter Kamau Njau v Emmanuel Charo Tinga
    [2016] eKLR, Malindi CoA Civil Appeal No. 29 of 2016

    Positive steps by owner required to stop time running

  • Chalicha FC & Others v Ohiambo & 9 others
    (1987) eKLR

    Cited by the Respondent on parties being bound by their pleadings

Jurisdiction invoked
Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22) - original jurisdiction of the Environment and Land 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, "Electrina Nanjala Waswa v Fednand Nyongesa Wanjala", Case Analysis (2023). Environmental and Land Originating Summons E007 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21560/eng@2023-11-09

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