Mwita & another (Suing as Administrators of the Estate of Mwita Kerario - Deceased) v Nyamohanga & another (Sued as Administrators of the Estate of Nyamohanga Kerario - Deceased) (Enviromental and Land Originating Summons 66 of 2021) [2024] KEELC 554 (KLR)
The bottom line
#A Kenyan court refused to transfer family land by adverse possession because the occupation was based on agreed boundaries, not hostile possession.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved acquisition of 2.95 Ha by adverse possession
The claim for adverse possession failed; the plaintiffs' possession was permissive/consensual, being occupation pursuant to boundaries agreed between the two deceased brothers, and issues (c) and (d) were not proved
The suit land was registered in equal halves in the names of the parties as administrators of the two deceased brothers' estates. Although the register shows equal shares, the deceased brothers had fixed boundaries in 1979, leaving the plaintiffs with about 12.1 Ha and the defendants with about 7.4 Ha. This occupation was with the knowledge and acquiescence of deceased 2's family, hence consensual. Applying Mbira v Gachuhi and Richard Wefwafwa Songoi, possession must be non-permissive and non-consensual; consensual family occupation cannot found adverse possession. The claim for a definite portion was properly framed, but the essential adverse character of possession was absent.
Determination of the boundary dispute under Sections 18 and 19 of the Land Registration Act
The boundary dispute was determined through the court-ordered exercise by the Land Registrar and Surveyor pursuant to Sections 18 and 19 of the Land Registration Act
On 27th July 2020 the court directed the Land Registrar for Kuria East and Kuria West Sub-Counties together with the Surveyor to visit the land, fix boundaries and file reports. The resulting report and sketch (PExhibits 5a and b), executed by Government Surveyor James Okoth Atata, confirmed the occupation at 12.1 Ha for the plaintiffs and 7.4 Ha for the defendants, corroborated by the plaintiffs' surveyor's report and the minutes of the 30th November 2019 meeting. The defendants led no expert evidence to controvert these findings.
Costs
Each party to bear own costs because the plaintiffs partly succeeded and partly failed
Costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act, and a successful party should ordinarily be awarded costs unless the court directs otherwise for good reason. Since the plaintiffs proved issues (a) and (b) but failed on the adverse possession issues (c) and (d), the court considered it appropriate that each party bear their own costs.
Legal principles established
#- A person seeking title by adverse possession must prove non-permissive or non-consensual actual, open, notorious, exclusive and adverse use for the statutory period without interruption
- Whether possession of land is adverse is a matter of evidence, depending on whether the particulars of adverse possession pleaded are established
- The opinion of an expert witness is not binding on the court; the court decides conflicting expert evidence
Court orders
#- 1.Issues (a) and (b) in the originating summons dated 26th July 2018 are proved
- 2.Issues (c) and (d) in the originating summons are not proved to the requisite standard, so the suit partially fails
- 3.Each party shall bear his or her own costs
- 4.The parties are encouraged to embrace alternative dispute resolution with a view to resolving the dispute in finality
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 (Environment and Land Court), the suit having been transferred from Migori Environment and Land Court pursuant to Articles 50(1) and 48 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwita & another (Suing as Administrators of the Estate of Mwita Kerario - Deceased) v Nyamohanga & another (Sued as Administrators of the Estate of Nyamohanga Kerario - Deceased) (Enviromental and Land Originating Summons 66 of 2021) [2024] KEELC 554 (KLR)", Case Analysis (2024). Originating Summons dated 26th July 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/554/eng@2024-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.