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ELCAllowedOriginating Summons dated 17th September 2015 (as amended 07.12.2017), Kilgoris ELC· [2024] KEELC 1489 (KLR)

Sapai (Suing as the personal representative of the Estate of Onkware Omwenga (Deceased) v Sapai (Suing as the legal administrator of the Estate of Konoi Sapai (Deceased) & 3 others (Environment & Land Case 22 of 2021) [2024] KEELC 1489 (KLR)

Environment and Land Court
12 March 2024
13,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~53 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a family 15.5 acres of land after 37 years of open occupation, confirming that even a later registered buyer can lose the land to adverse possession.

What this practically means

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Executive summary

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The plaintiff, son of the late Onkware Omwenga, sought a declaration that his father's estate had acquired LR.No.transmara/meguara/132 (15.5 acres) by adverse possession, and an order compelling the defendants to transfer it to him. The claim rested on a written sale agreement dated 10.02.1976 for 6 acres and an oral 1978 exchange agreement under which the late Konoi Sapai gave up the remaining 9.5 acres in return for the plaintiff's family parcel LR.No.transmara/meguara/148 plus 11 cows and 4 goats. The late Konoi Sapai admitted the exchange but asserted only the 6 acres were sold, the balance being held in trust for him; the 1st and 2nd defendants relied on the 2015 sale and transfer of the title to the 2nd defendant. The court framed the claim under sections 37 and 38 of the Limitation of Actions Act and applied Mtana Lewa, Wambugu v Njuguna and Public Trustee v Wanduru. It held that possession was taken in 1976 (6 acres) and 1978 (the balance), was open, notorious and of right, and was known to and admitted by the late vendor. Time ran from payment of the last instalment, so the 12-year period had long lapsed before the 2015 suit. The court declared the estate the owner by adverse possession, held the 1st and 2nd defendants' title in trust for the estate, ordered the 2nd defendant to effect transfer within 45 days (failing which the Deputy Registrar, Kilgoris ELC, to sign), and awarded costs against the 1st and 2nd defendants.

Key legal issues

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01

Adverse possession - date possession commenced

Holding

The court found the 1976 written agreement for 6 acres genuine and possession of the entire 15.5 acres taken from 1978 upon the oral exchange agreement

Reasoning

The court was satisfied the Agreement For Sale dated 10.02.1976 was legitimate and binding. The vendor did not dispute its existence in his Replying Affidavit. Possession of the 6 acres was taken in 1976; possession of the remaining 9.5 acres followed the 1978 oral exchange agreement under which Onkware Omwenga gave LR.148 plus 11 cows and 4 goats and moved onto the whole parcel.

p. 22
02

Adverse possession - nature of possession

Holding

Possession was open, notorious and to the dispossession of the registered owner

Reasoning

Relying on Gabriel Mbui v Mukindia Maranya, the court required facts showing occupation, use and clear intention to hold adversely. The evidence of trees, tea planted and harvested by the Onkware Omwenga family for sale to Kiamokama Tea Factory, share certificates, payment slips and a homestead established open and notorious occupation, uncontradicted by any evidence the vendor shared in the tea bonus.

p. 23
03

Knowledge of the owner and duration of 12 years

Holding

The vendor admitted the occupation in his Replying Affidavit; the 12-year period had long lapsed before filing of the suit

Reasoning

The late Konoi Sapai admitted the 1978 exchange and occupation in his Replying Affidavit, confirming knowledge. Computing time from payment of the last instalment (the 1978 exchange consideration) per Wambugu v Njuguna and Public Trustee v Wanduru, adverse possession matured long before the 2015 suit. The 1st defendant offered no evidence of the alleged sale of LR.145 to displace the 11 cows and 4 goats consideration.

p. 28
04

Transfer of the suit property to the 2nd defendant

Holding

The 1st and 2nd defendants were found to hold the title in trust for the estate of the late Onkware Omwenga despite the 2015 sale and registration

Reasoning

The 2nd defendant purchased from the 1st defendant in 2015 and was registered, but never took possession; the irregular issuance of a Certificate of Title before registration of the transfer was noted. Having acquired title by adverse possession, the plaintiff's estate prevailed and the subsequent purchasers' title was effectively subject to the acquired rights.

p. 28

Legal principles established

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  • To succeed in adverse possession one must occupy the land openly, without secrecy, force or licence, with intention to have the land, evidenced by apparent dispossession of the owner (nec vi, nec clam, nec precario)
  • Where a claimant pleads title under an agreement and alternatively adverse possession, time runs from payment of the last instalment of the purchase price
  • A purchaser's occupation under a sale agreement before completion of payment is with the vendor's consent and cannot ripen into adverse possession until the last instalment is paid

Court orders

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  1. 1.The amended originating summons is merited
  2. 2.Declaration that the late Onkware Omwenga purchased 6 acres under the written agreement dated 10th February 1976 and 9.5 acres in consideration of exchange of LR.No.transmara/meguara/148 plus 11 heads of cattle and 4 goats
  3. 3.Declaration that for over 37 years the plaintiff has been in peaceful, quiet, notorious and open possession of the 15.5 acres, and that the estate of the late Onkware Omwenga has acquired title by way of adverse possession
  4. 4.Declaration that the 1st and 2nd defendants hold the title to LR.No.narok/transmara/meguara/132 in trust for the estate of the late Onkware Omwenga
  5. 5.The 2nd defendant to sign necessary documents within 45 days to effect transfer of LR.No.transmara/meguara/132 (15.5 acres) to the plaintiff, and in default the Deputy Registrar, Kilgoris ELC, to sign for and on behalf of the defendant
  6. 6.The 1st and 2nd defendants to bear the costs of the Originating Summons

Authorities

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Legislation

  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActCap 22 (generally)
  • English Limitation Act, 1939Section 10(1) (referred to in Public Trustee v Wanduru)

Cases cited (8)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    (2015) eKLR
  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    Civil Application No.110 of 2016 (2020) eKLR
  • Gabriel Mbui v Mukindia Maranya
    (1993) eKLR
  • Wambugu v Njuguna
    (1983) KLR 173
  • Simon Nganga Njoroge v Daniel Kinyua Mwangi
    (2015) eKLR
  • Public Trustee v Wanduru
    (1984) KLR 314
  • Bridges v Mees
    (1957) 1Ch 75
  • Wamwangi Githui v Livingstone Ndete and others
    CA No.24 of 1979 (unreported)
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act, Cap 22 - adverse possession claim over registered 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, "Sapai (Suing as the personal representative of the Estate of Onkware Omwenga (Deceased) v Sapai (Suing as the legal administrator of the Estate of Konoi Sapai (Deceased) & 3 others (Environment & Land Case 22 of 2021) [2024] KEELC 1489 (KLR)", Case Analysis (2024). Originating Summons dated 17th September 2015 (as amended 07.12.2017), Kilgoris ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1489/eng@2024-03-12

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