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ELCPartially AllowedELC Suit No. 49 of 2021 (consolidated with ELC Suit No. 23 of 2017 (O.S))· [2024] KEELC 16 (KLR)

Ogolla & another v Oguma & 4 others (Environment & Land Case 49 of 2021 & 23 of 2017 (Consolidated)) [2024] KEELC 16 (KLR)

Environment and Land Court
18 January 2024
11,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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A Kisumu court split contested land between the registered owner and a family that had openly occupied half of it for over 30 years.

What this practically means

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Executive summary

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Two consolidated suits concerned Title No. Kisumu/Kanyawegi/4646 measuring 2.3 hectares. In ELC Suit No. 49 of 2021 the Plaintiff, registered owner after succeeding his father Joel Ogolla Olum, sued the four Defendants for trespass, seeking a permanent injunction and eviction, alleging they entered the property in January 2016 and built houses. In ELC Suit No. 23 of 2017 (O.S) the 2nd Defendant claimed he purchased the suit property from the Plaintiff's father in 1988 and had acquired it by adverse possession, seeking registration of the whole property in his name. The main suit was treated as the claim and the Originating Summons as the counter-claim. The court found the Plaintiff was the registered owner but that the 1st Defendant did not occupy the suit property, clearing him. The 2nd, 3rd and 4th Defendants' interests derived from the 2nd Defendant's adverse possession claim. Applying the principles in Gabriel Mbui, Kimani Ruchine, Wambugu v. Njuguna, Githu v. Ndeete and Mombasa Teachers, the court found the 2nd Defendant entered the property between 1986 and 1988 and remained in open, peaceful, uninterrupted occupation for over 30 years, but proved adverse possession of only a portion of about 1.15 hectares - almost half the property - rejecting the Defendant surveyor's evidence on measurements. Consequently the Defendants were not trespassers on that portion, but the 2nd Defendant failed to prove acquisition of the whole property. The court ordered an equal subdivision of the suit property with minimal interference to existing homesteads, registration of the Plaintiff over his portion, transfer and registration of the Defendants' portion to the 2nd Defendant, with the Deputy Registrar empowered to execute documents on default, and each party to bear its own costs.

Key legal issues

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01

Whether the 2nd Defendant acquired a portion of the suit property by adverse possession

Holding

Yes - he acquired a portion measuring about 1.15 hectares (roughly half the suit property), having occupied it openly, peacefully and without interruption from around 1986, over 30 years before the Originating Summons

Reasoning

The 2nd Defendant entered and occupied the portion between 1986 and 1988 and remained in open, peaceful and uninterrupted occupation until 2016 when the Plaintiff became registered owner and a survey revealed the encroachment. Applying the principles in Gabriel Mbui, Kimani Ruchine, Wambugu v. Njuguna and Mombasa Teachers, the occupation was non-permissive, open, exclusive and continuous for well over the statutory 12 years. However, he proved occupation only of a portion, almost half of the 2.3-hectare property, based on the sketch map and structures, not the whole property.

p. 17
02

Whether the Defendants were trespassers liable to eviction

Holding

No - the 2nd, 3rd and 4th Defendants had justifiable cause for occupation derived from the 2nd Defendant's adverse possession; the 1st Defendant was cleared as he did not occupy the suit property

Reasoning

The Plaintiff established registration and that the Defendants occupied a portion without his permission, shifting the evidential burden to the Defendants. They demonstrated through evidence of long occupation, the 1988 sale agreement with the Plaintiff's father, burials and homesteads that the 2nd Defendant had acquired the portion by adverse possession. The 1st Defendant did not occupy the suit property, so the trespass claim against him failed.

p. 17
03

Determination of the extent of the portion adversely possessed

Holding

The court found the portion in actual occupation by the 2nd Defendant and his brothers to be almost half the suit property, about 1.15 hectares, rejecting the surveyor DW2's evidence as unhelpful on measurements

Reasoning

DW2 focused on the Plaintiff's occupation rather than the Defendants' occupation, and referred to Plot No. 4645 which no longer existed after successive subdivisions. Relying on the sketch map attached to DEXH.9 showing structures and features, the court found the occupied portion to be almost half of the 2.3-hectare property. Precise identification of the adversely possessed land is an integral part of proving such a claim.

p. 16

Legal principles established

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  • Title to land carries with it legal possession, so a registered owner may maintain trespass even without physical possession
  • Mere occupation is not proof of trespass; the owner must establish entry without justifiable cause, after which the burden shifts to the defendant
  • The legal burden of proof is static while the evidential burden shifts during trial
  • A title by adverse possession can be acquired to a part of a parcel of land which the owner holds title
  • Costs follow the event unless the court for good reason orders otherwise

Court orders

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  1. 1.Title No. Kisumu/Kanyawegi/4646 shall be subdivided into two equal portions with allowance for access roads as may be necessary and reasonable in the opinion of the surveyor
  2. 2.The subdivision shall take into consideration the settlements within the property by the Plaintiff and his brothers and the 2nd Defendant and his brothers, ensuring minimal interference with existing homesteads
  3. 3.The Plaintiff shall be registered as owner of the portion on which his homestead and that of his brothers are situated
  4. 4.The Plaintiff shall execute a transfer in favour of the 2nd Defendant in respect of the portion on which the 2nd Defendant's and his brothers' homesteads are situated
  5. 5.The subdivision shall be carried out by the Kisumu County Surveyor with the Plaintiff and 2nd Defendant involved and at liberty to engage private surveyors at their own costs
  6. 6.The Plaintiff and the 2nd Defendant shall share the costs of the subdivision and consents and cooperate in effecting the transfer and registration
  7. 7.The 2nd Defendant shall pay the registration fees for the transfer and stamp duty in respect of his portion
  8. 8.The Deputy Registrar is authorised to execute any document on behalf of a party who refuses or fails to execute it
  9. 9.Either party may apply in respect of orders 1 and 2 should difficulty arise in implementation
  10. 10.Each party shall bear its own costs

Authorities

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Legislation

  • Land Registration ActSection 28(h); Section 18(2)
  • Limitation of Actions Act (Chapter 22, Laws of Kenya)Sections 7, 16, 17 and 33

Cases cited (15)

  • Azzuri Limited v. Pink Properties Limited
    [2018] eKLR
  • Estate Sonrisa Ltd. v. Samuel Kamau Macharia & 2 others
    [2020] eKLR
  • Mehta v. Shah
    [1965] E.A 321
  • Gathoni v. Kenya Cooperative Creameries Ltd.
    [1982] KLR 104
  • Kasuve v. Mwaani Investments & 4 others
    1 KLR 184
  • Raila Amolo Odinga & Another v. IEBC & 2 Others
    Presidential Election Petition No. 1 of 2017 [2017] eKLR
  • Gabriel Mbui v. Mukindia Maranya
    [1993] eKLR
  • Kimani Ruchine & Another v. Swift, Rutherford Co. Ltd. & another
    [1977] KLR 10
  • Wambugu v. Njuguna
    [1983] KLR 172
  • Githu v. Ndeete
    [1984] KLR 776
  • Mombasa Teachers Co-operative Savings & Credit Society Limited v. Robert Muhambi Katana & 15 others
    [2018] eKLR
  • Jandu vs. Kirplal & Another
    (1975) EA 225
  • Wilson Kazungu Katana & 101 Others vs. Salim Abdalla Bakshwein & Another
    [2015] eKLR
  • Gitwany Investments Limited v. Tajmal Limited & 3 others
    [2006] eKLR
  • Titus Mutuku Kasuve vs. Mwaani Investments Limited & 4 Others
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating to title, occupation and adverse possession of land

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, "Ogolla & another v Oguma & 4 others (Environment & Land Case 49 of 2021 & 23 of 2017 (Consolidated)) [2024] KEELC 16 (KLR)", Case Analysis (2024). ELC Suit No. 49 of 2021 (consolidated with ELC Suit No. 23 of 2017 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/16/eng@2024-01-18

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