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ELCDismissedOriginating Summons dated 15th October 2019· [2024] KEELC 666 (KLR)

Simali v Munyokho (Environment & Land Case 115 of 2019) [2024] KEELC 666 (KLR)

Environment and Land Court
13 February 2024
DOD. O. Ohungo
1,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kakamega Environment and Land Court dismissed a 25-year adverse possession claim because the claimant could not clearly identify the land or prove 12 years of undisturbed possession.

What this practically means

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Executive summary

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The plaintiff moved the court by Originating Summons dated 15th October 2019 claiming title to a 0.6 hectare portion of Butsotso/Ingotse/2887 and 2889 by adverse possession. He deposed that in June 1999 he purchased the portion from the defendant for KShs 90,000, paid the full price and a surveyor, took occupation, planted crops and trees, was relocated to another portion by the defendant in 2007, and discovered on a search in February 2019 that the defendant had subdivided and registered the suit properties in his own name. The defendant denied the claim in a replying affidavit, asserting the plaintiff never occupied the suit properties, that parcel 2887 no longer existed having been subdivided into parcels 3460 and 3461 occupied by his family and a non-party purchaser, and that any sale agreement would be invalid under the Land Control Act. At trial, the plaintiff testified and called his brother as PW2; the defence case was closed after repeated adjournments and the defendant's non-appearance on 20th April 2023. Only the plaintiff filed submissions. The court framed two issues: whether adverse possession was established and whether the reliefs should issue. Applying Court of Appeal authorities, it held that a claimant must clearly identify the land claimed, prove peaceful, open and undisturbed possession for 12 years, and that time runs for a purchaser only from full payment of the purchase price. The plaintiff failed to produce the registers showing how parcel 2887 was created or confirm it still existed, leaving it unclear whether other proprietors or occupants should have been parties. The claim was dismissed with no order as to costs, since the defendant did not fully defend the matter.

Key legal issues

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01

Whether adverse possession was established

Holding

Not established; the plaintiff failed to identify the land claimed and produce registers showing how the claimed parcel was created, and could not show 12 years of undisturbed possession

Reasoning

The court applied the requirement that land claimed by adverse possession must be clearly identified, as required by Order 37 rule 7 of the Civil Procedure Rules and the Wilson Kazungu Katana authority. The plaintiff did not produce registers for Butsotso/Ingotse/2887 or its parent parcels; the defendant showed the parcel had been subdivided into 3460 and 3461. It was therefore impossible to ascertain whether the claimed parcel still existed or whether other proprietors or occupants had not been joined. Further, possession under a sale is permissive until full payment, and the plaintiff did not demonstrate this.

p. 4

Legal principles established

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  • Possession under an incomplete sale transaction is permissive; adverse possession time runs for a purchaser only from full payment of the purchase price

Court orders

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  1. 1.The suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 rule 7
  • Land Control Act

Cases cited (6)

  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Loise Nduta Itotia v Aziza Said Hamisi
    [2020] eKLR
  • Kimani Ruchire v Swift Rutherford & Co. Ltd.
    [1980] KLR 10
  • Public Trustee v Wanduru Ndegwa
    [1984] eKLR
  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Githu v Ndele
    [1984] KLR 776
Jurisdiction invoked
Original jurisdiction over adverse possession claim under Order 37 rule 7 of the Civil Procedure Rules

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, "Simali v Munyokho (Environment & Land Case 115 of 2019) [2024] KEELC 666 (KLR)", Case Analysis (2024). Originating Summons dated 15th October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/666/eng@2024-02-13

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