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ELCPartially AllowedOriginating Summons dated 27/6/2023 (amended 24/10/2023)· [2024] KEELC 4194 (KLR)

Ondieki v Saisi (Environment & Land Case E001 of 2023) [2024] KEELC 4194 (KLR)

Environment and Land Court
11 April 2024
MKMUGO KAMAU
1,048 words in judgment
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The bottom line

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A Kenyan court ruled that living openly on land for over 12 years gives you ownership rights, even if the transfer paperwork was never completed.

What this practically means

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Executive summary

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The Plaintiff filed an Originating Summons (amended 24/10/2023) seeking declarations that the Defendant's right to recover 0.75 acres of LR Mwongori Settlement Scheme/1181 was barred under the Limitation of Actions Act, registration of the Plaintiff as proprietor, rectification of the register, an order compelling the Defendant to execute transfer documents (with the Deputy Registrar empowered to execute in default), and an injunction against interference. The Plaintiff deponed that he bought the land from the Defendant's brother, John Kebaso Saisi, for Kshs 250,000, took possession, built a permanent house and fenced it, and had occupied it since 2000. The Defendant initially denied selling the land, but in his testimony admitted witnessing the sale transaction and the money changing hands, confirmed the Plaintiff fenced the land in 2003 and had lived there continuously without interruption, and ultimately stated he had no objection to transferring the 0.75 acre portion to the Plaintiff. The court found the Plaintiff had been in continuous, open and uninterrupted occupation for over 12 years and granted the prayers in the amended Originating Summons. On costs, although costs follow the event, the court declined to condemn the Defendant, whose efforts to transfer the land were frustrated by the Vendor's wife. Judgment was delivered virtually on 11 April 2024 by Mugo Kamau J.

Key legal issues

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01

Whether the Plaintiff acquired title by adverse possession

Holding

Yes - the Plaintiff's continuous, open and uninterrupted occupation for over 12 years extinguished the Defendant's right to recover the suit portion

Reasoning

The Plaintiff purchased the land from John Kebaso Saisi, took possession with permission, built a permanent house and fenced the land, and had lived there since 2000. The Defendant admitted the sale transaction, witnessed the consideration paid, confirmed the occupation was never interrupted, and raised no objection to transferring the 0.75 acre portion. Possession exceeding 12 years barred recovery under the Limitation of Actions Act.

p. 3

Legal principles established

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  • Adverse possession is established where a claimant has been in continuous, uninterrupted and open occupation of land for over 12 years

Court orders

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  1. 1.The Plaintiff's prayers as contained in the amended Originating Summons dated 24/10/2023 are granted
  2. 2.No order as to costs - Defendant not condemned to pay costs
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act Cap 22 (adverse possession claim)

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, "Ondieki v Saisi (Environment & Land Case E001 of 2023) [2024] KEELC 4194 (KLR)", Case Analysis (2024). Originating Summons dated 27/6/2023 (amended 24/10/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4194/eng@2024-04-11

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