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ELCPartially AllowedELCC No. 364 of 2014 (Lead File), consolidated with ELCC No. 112 of 2019· [2024] KEELC 4762 (KLR)

Gunyama & 2 others v Musambayi & 3 others (Environment & Land Case 364 of 2014) [2024] KEELC 4762 (KLR)

Environment and Land Court
19 June 2024
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kakamega court confirmed that holding a title certificate, not merely living near land long ago, decides Kenyan land ownership.

What this practically means

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Executive summary

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This judgment disposes of two consolidated suits, ELCC No. 364 of 2014 (formerly HCCC No. 84 of 2008) and ELCC No. 112 of 2019 (formerly Kakamega HCCC No. 8 of 2010 (OS)), which were consolidated on 22nd March 2022 with the former as lead file. Gunyama Andrew Gunyama sued Michael Lulumbi Musambayi for trespass, seeking a declaration of ownership, eviction and a permanent injunction in respect of land parcel Isukha/Shirere/2725, of which he became registered proprietor on 11th January 1989 after purchasing it from Antiriko Machinji Alusila. Michael, by an Originating Summons, claimed a 1 acre portion of parcels 2725, 2904 and 2905 by adverse possession, alleging the land was ancestral land of Lawrence Alusiola fraudulently inherited and sold. During the proceedings, Lonita Lihavi died in 2018 without substitution and her case abated; Michael withdrew his claims against Respa Lishindu Machinji and Jacktone Nyikuli on 31st March 2023, leaving only the dispute between Michael and Gunyama over parcel 2725. Applying the adverse possession principles in Richard Wefwafwa Songoi v Ben Munyifwa Songoi, the court held that Michael, who admitted he was not in possession of the suit property and had only accidentally encroached by one foot, failed to prove hostile, open and undisturbed possession for 12 years. Gunyama's unchallenged title under sections 24 and 26 of the Land Registration Act was upheld. The court dismissed Michael's case, issued a declaration of Gunyama's ownership (valid as between the parties) and a permanent injunction against Michael, but declined to order eviction since Michael was no longer in occupation. Gunyama received the costs of the consolidated suits. (D. O. Ohungo, Judge; delivered at Kakamega on 19th June 2024.)

Key legal issues

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01

Adverse possession

Holding

Michael failed to establish adverse possession; he admitted he was not in possession of the suit property and only accidentally encroached by 1 foot

Reasoning

The court applied the test that a claimant must demonstrate the date possession commenced, its nature, openness to the registered proprietor, and undisturbed possession for 12 years. Michael himself testified he resides on parcel 2905 and was not in possession of parcel 2725, and Gunyama confirmed Michael left and never returned. Possession was neither hostile nor continuous for 12 years.

p. 3
02

Indefeasibility of registered title

Holding

Gunyama's title to Isukha/Shirere/2725 was unchallenged and conclusive, entitling him to declaration and permanent injunction

Reasoning

Being registered proprietor, Gunyama enjoys rights under section 24 of the Land Registration Act, and section 26 obliges the court to treat his certificate of title as conclusive unless the section 26(1)(a) or (b) provisos apply. Michael's title challenge rested solely on the failed adverse possession claim, so a declaration and permanent injunction issued in Gunyama's favour.

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Legal principles established

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  • A party claiming adverse possession must assert hostile title in denial of the registered proprietor's title, and proof is assessed by whether the title holder has been dispossessed or discontinued possession for 12 years
  • A registered proprietor enjoys conclusive title under sections 24 and 26 of the Land Registration Act unless the statutory provisos are established

Court orders

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  1. 1.Michael Musambayi's case in ELCC No. 112 of 2019 is dismissed
  2. 2.A declaration that, as between the parties, Gunyama Andrew Gunyama is the rightful owner of land parcel number Isukha/Shirere/2725 and is entitled to exclusive, peaceful and unimpeded possession and use thereof
  3. 3.A permanent injunction perpetually restraining Michael Musambayi, his employees, servants, agents or any person claiming under him from alienating, laying claim to, trespassing onto, utilizing, developing or otherwise dealing with land parcel number Isukha/Shirere/2725
  4. 4.Gunyama Andrew Gunyama shall have costs of the consolidated suits; Michael Musambayi shall bear the said costs
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court), suits transferred from the High Court

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, "Gunyama & 2 others v Musambayi & 3 others (Environment & Land Case 364 of 2014) [2024] KEELC 4762 (KLR)", Case Analysis (2024). ELCC No. 364 of 2014 (Lead File), consolidated with ELCC No. 112 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4762/eng@2024-06-19

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