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ELCDismissedOriginating Summons dated 2nd February, 2017· [2024] KEELC 1198 (KLR)

Kerario v Masero (Environment and Land Case 9 of 2017) [2024] KEELC 1198 (KLR)

Environment and Land Court
20 February 2024
MKMohammed N. Kullow
3,620 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a decades-long land possession claim because living on land believing it is family property is not the same as adverse possession.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons dated 2nd February 2017 seeking declarations of adverse possession over land reference No. Bukira/Bwisaboka/3886, an order compelling transfer of the parcel into his name, directions to the Land Registrar Kehancha to effect registration, an injunction against interference with his possession, and a declaration that the Defendant held the land in trust for him by way of fraud. The Plaintiff claimed he was born on the land in 1954, that an aerial mapping error during adjudication merged his father's land with the Defendant's father's parcel No. 653, and that the Defendant had executed transfer forms in his favour after succession proceedings. The Defendant denied the claim, contending that parcel 3886 only came into existence on 2nd June 2011, that the land formed part of his late father's estate distributed in Migori Succession Cause No. 176 of 2008, and that the Plaintiff was to purchase a portion but failed to pay the agreed Kshs. 500,000/=, whereupon he sold portions to third parties confirmed as beneficiaries. The court framed two issues: whether the Plaintiff proved adverse possession and whether he was entitled to the reliefs sought. It held that adverse possession is observed on the land, not the title, but found that the Plaintiff never established the current registered owner of parcel 3886, which had been sold to non-party third parties; that his occupation rested on a belief of family ownership arising from an adjudication error for which he never exhausted the objection and appeal mechanism under sections 26 and 29 of the Land Adjudication Act; and that long possession does not necessarily amount to adverse possession. The Originating Summons was dismissed with costs to the Defendant on 20th February 2024.

Key legal issues

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01

Whether the Plaintiff proved adverse possession over parcel No. Bukira/Bwisaboka/3886

Holding

The claim failed. The Plaintiff did not prove the current registration of the suit land, did not show when his occupation became adverse, and his occupation was under a belief of family ownership contrary to an adverse possession claim. He also failed to exhaust the Land Adjudication Act process.

Reasoning

The court set out the statutory framework under sections 7, 13, 17 and 38 of the Limitation of Actions Act. It found the Plaintiff never established who is the current registered owner, as the land had been sold to third parties pursuant to a confirmed grant. His occupation stemmed from an adjudication error, which the Land Adjudication Act's objection and appeal mechanism (sections 26 and 29) was designed to address. Possession based on a belief of inherited family ownership is not adverse to the registered title.

p. 6
02

Whether the Plaintiff is entitled to the reliefs sought

Holding

No. Having failed to prove the adverse possession claim to the required standard, none of the reliefs could issue.

Reasoning

The court declined to grant transfer or registration orders where the registered ownership of the suit land was unclear and third parties claiming purchaser interests were not before the court. Orders in limbo affecting non-parties would be improper.

p. 5

Legal principles established

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  • Adverse possession is a fact to be observed upon the land, not upon the title; it is premised on occupation of the land and not on the registration of the title.
  • Long possession does not necessarily amount to adverse possession.
  • A party aggrieved by the adjudication register must exhaust the objection and appeal process under the Land Adjudication Act before seeking court relief.

Court orders

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  1. 1.The Originating Summons dated 2nd February, 2017 is dismissed
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 17 and 38(1) and (2)
  • Land Registration ActSection 28(h)
  • Land Adjudication ActSections 26(1), 26(2) and 29(1)

Cases cited (4)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Gachuma Gacheru vs Maina Kabuchwa
    [2016] eKLR
  • Wilson Kazungu Katana & 101 others v. Salim Abdalla Bakshwein & another
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title and occupation of land (adverse possession claim under the Limitation of Actions Act)

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, "Kerario v Masero (Environment and Land Case 9 of 2017) [2024] KEELC 1198 (KLR)", Case Analysis (2024). Originating Summons dated 2nd February, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1198/eng@2024-02-20

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