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ELCDismissedEnvironment & Land Case 26 of 2018· [2024] KEELC 1186 (KLR)

Mukolwe v Khasuru (Environment & Land Case 26 of 2018) [2024] KEELC 1186 (KLR)

Environment and Land Court
6 March 2024
DOD. O. Ohungo
1,670 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 widow's adverse possession claim because she believed she was on her own land and had not occupied the neighbour's parcel for the required 12 years.

What this practically means

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Executive summary

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The Plaintiff, widow and administratrix of the estate of John Mukolwe (deceased), moved the court by Originating Summons dated 13th March 2018 claiming title to land parcel Kisa/Khushiku/876 by adverse possession. She deposed that she had settled on the suit property since 1971 upon marriage, developed it to the exclusion of the Defendant, and relied on a will dated 16th October 2001 allegedly executed by Dickson Omutere Khasuru (the Defendant's father and former registered proprietor) holding the land for her husband. The Defendant denied the will and any occupation of the parcel by the Plaintiff or her husband, and asserted that the dispute was a boundary dispute resolved by the Khwisero Land Disputes Tribunal, whose award was adopted in Kakamega CM Misc. Award No. 92 of 2008 on 1st September 2008, after which surveyors fixed the common boundary. The matter proceeded by oral evidence, with both parties adopting their affidavits and witness statements. The court framed two issues: whether adverse possession was established and whether the reliefs should issue. Guided by Court of Appeal authorities, the court held that the claimant must prove factual possession and animus possidendi; that a claimant who honestly believes she is on her own land lacks intention to dispossess; that a boundary dispute prevents identification of the land claimed with certainty as Order 37 Rule 7 requires; and that time could not run while the parties litigated before the tribunal, so the 12-year period had not accrued when the suit was filed on 13th March 2018. The Originating Summons was dismissed with costs to the Defendant on 6th March 2024.

Key legal issues

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01

Whether adverse possession of Kisa/Khushiku/876 was established

Holding

Not established. The dispute was a boundary dispute; the land claimed was not identified with certainty; the claimant lacked animus possidendi; and less than 12 years had elapsed after the tribunal litigation concluded.

Reasoning

The plaintiff's own testimony confirmed surveyors identified the plot she occupied as Kisa/Kushiku/877, showing the dispute was about the boundary between the two parcels. Where a claimant believes she is on her own land, there is no intention to dispossess the neighbour. Parties litigated before the Khwisero Land Disputes Tribunal until the award was adopted on 1st September 2008, so time could not run during that period; the OS filed on 13th March 2018 was less than ten years later, short of the 12 years required.

p. 4
02

Identification of the land claimed in adverse possession

Holding

The land was not identified with certainty as required by Order 37 Rule 7 and the authorities.

Reasoning

Order 37 Rule 7 requires a certified extract of title annexed to the supporting affidavit. Where parties are locked in a boundary dispute, the exact land in the claimant's possession cannot be ascertained with the certainty the law demands, defeating the claim.

p. 3

Legal principles established

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  • A claimant in adverse possession must prove both factual possession (factum possessionis) and the requisite intention to possess (animus possidendi), which must coincide continuously throughout the limitation period.
  • Time does not run for adverse possession while the parties are actively litigating over the land.
  • A claimant who honestly believes she is on her own land cannot have the animus possidendi necessary for adverse possession against a neighbour.
  • The land claimed in adverse possession must be identified with certainty, as required by Order 37 Rule 7 of the Civil Procedure Rules.

Court orders

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  1. 1.The Plaintiff's Originating Summons is dismissed with costs to the Defendant

Authorities

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Legislation

  • Limitation of Actions Act12-year limitation period for adverse possession
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (6)

  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Loise Nduta Itotia v Aziza Said Hamisi
    [2020] eKLR
  • Kimani Ruchire vs Swift Rutherford & Co. Ltd.
    [1980] KLR 10
  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & another
    [2015] eKLR
  • Githu v Ndele
    [1984] KLR 776
  • Masambaga & 7 others v Malindi Holdings and Estate Limited
    (Civil Appeal 165 of 2019) [2022] KECA 782 (KLR) (10 June 2022)
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; claim for adverse possession under the Limitation of Actions Act by Originating Summons under Order 37 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, "Mukolwe v Khasuru (Environment & Land Case 26 of 2018) [2024] KEELC 1186 (KLR)", Case Analysis (2024). Environment & Land Case 26 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1186/eng@2024-03-06

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