Pamba & 2 others v Barasa & 3 others (Enviromental and Land Originating Summons E005 of 2020 & Environment & Land Case 111 of 2019 (Consolidated)) [2024] KEELC 3909 (KLR)
The bottom line
#A Busia court ruled that 20 years of open occupation let a buyer own land by adverse possession, even against heirs who later got the title deed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff acquired half an acre of parcel South Teso/Angoromo/7322 by adverse possession
Yes - possession from 1999 to 2019 (20 years) was open, peaceful, continuous and uninterrupted, exceeding the 12-year statutory period
The Plaintiff entered as a purchaser under a sale agreement dated 10th August 1999, fully paid Kshs.120,000 and took possession. His occupation continued until 2019 when the local administration stopped him. The 1st Defendant admitted in cross-examination that the Plaintiff used the land until 2019. Two witnesses confirmed the occupation. By the time of eviction he had exceeded the 12-year period, so his right had ripened and the subsequent 2019 suit could not interrupt it.
Whether the Defendants, as registered proprietors via succession transmission, were entitled to injunct the Plaintiff
No - their interest had been extinguished by adverse possession before registration; the counter-claim was dismissed
The Grant was confirmed on 15th December 2017 and the Defendants registered on 22nd August 2018, but by then the deceased's and their interest had long been extinguished because the Plaintiff's 12 years expired around 2011. Adverse possession is an overriding interest under Section 28(h) of the Land Registration Act. They therefore held the title in trust for the Plaintiff and could not obtain an injunction against him or against Opama Emaase Juvenalis.
Legal principles established
#- A purchaser in possession who has fully paid the purchase price is a party in whose favour the limitation period can run to justify adverse possession
- Adverse possession requires exclusive, open, peaceful and uninterrupted possession for 12 years, without force, stealth or permission (nec vi, nec clam, nec precario)
- Registration obtained by transmission does not defeat a claim of adverse possession that has already accrued; the registered proprietor holds in trust for the adverse possessor
Court orders
#- 1.The Defendants' counter-claim is dismissed with costs to the Plaintiff; Opama Emaase Juvenalis is not entitled to any costs.
- 2.Judgment for the Plaintiff: the Defendants' rights over land parcel No South Teso/Angoromo/7322 have been extinguished by operation of the law and the Plaintiff has acquired the parcel by way of adverse possession.
- 3.The Defendants shall within 45 days deliver the original title deed to the Land Registrar Busia for cancellation and execute all necessary documents to facilitate registration in the Plaintiff's name.
- 4.In default, the Deputy Registrar Busia shall cancel the title and the Deputy Registrar of the Court shall execute the documents on behalf of the Defendants.
- 5.The Defendants shall forthwith give vacant possession of land parcel No South Teso/Angoromo/7322 to the Plaintiff.
- 6.The Defendants, their agents, servants, family members and all parties acting through them are injuncted from interfering with the Plaintiff's use of the land parcel.
- 7.The Defendants shall meet the Plaintiff's costs of his suit.
- Jurisdiction invoked
- Section 38(1) and (2) of the Limitation of Actions Act / Section 38 of the Civil Procedure Rules - application for an order that a person entitled by adverse possession be registered as proprietor
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pamba & 2 others v Barasa & 3 others (Enviromental and Land Originating Summons E005 of 2020 & Environment & Land Case 111 of 2019 (Consolidated)) [2024] KEELC 3909 (KLR)", Case Analysis (2024). Busia ELC Case No E005 of 2020 (OS) consolidated with Busia ELC Case No 111 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3909/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.