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ELCAllowedNot stated in judgment (Amended Originating Summons dated 10/5/2023)· [2024] KEELC 5088 (KLR)

Sinokho v Wandabwa (Enviromental and Land Originating Summons E002 of 2021) [2024] KEELC 5088 (KLR)

Environment and Land Court
27 June 2024
1,947 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By an Amended Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules and the Limitation of Actions Act, the plaintiffs, administrators of the Estate of John Soita Sinokho, claimed 21.25 acres formed out of Bungoma/Ndalu/150 by adverse possession. The deceased had purchased the land from Erastus Simiyu Butala by a sale agreement dated 10/11/2000, taken possession, and was registered as proprietor of the sub-divided parcel Bungoma/Ndalu/561 in 2001. Entries 9 and 11 on the register were later cancelled pursuant to court orders of 2001/2002, vesting title in the defendant, without the deceased's participation. The plaintiffs asserted continuous, open and uninterrupted occupation thereafter, exceeding 12 years. The defendant filed a memorandum of appearance but filed no response, and the suit proceeded by formal proof. PW1 produced the sale agreement, title deed, search, green card and photographs of developments. The court, applying Maweu v Liu Ranching and the Waweru v Richu line of authority, held that although entry was permissive under the sale agreement, possession became adverse once the deceased was registered, and again adverse after the cancellation restored title to the defendant, with time running from 2002. Finding the claim proved on a balance of probabilities, the court declared the plaintiffs in adverse possession, extinguished and cancelled the defendant's title, declared the Estate the proprietor, and ordered rectification of the register and amendment of the mutation. As the suit was undefended, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the plaintiffs acquired title by adverse possession of 21.25 acres of Bungoma/Ndalu/561

Holding

Yes - the plaintiffs proved continuous, open and uninterrupted possession for over 12 years on a balance of probabilities

Reasoning

Entry under the 2000 sale agreement was permissive, but upon registration of the sub-divided parcel to the deceased, possession became adverse. The later cancellation of the deceased's title restored ownership to the defendant, after which the deceased's continued occupation was adverse, since no permission was shown and the defendant took no steps to retake possession. Time began running in 2002 and expired by 2014/15.

p. 4
02

When time began running for adverse possession

Holding

Time began running in 2002 upon cancellation of the deceased's registration

Reasoning

The court held the cancellation entries restored the defendant as registered proprietor; thereafter the deceased could only hold with permission or adversely. The 2001/2002 court orders did not remove the deceased from possession, and no subsequent assertion of ownership by the defendant was evidenced, so adverse occupation ran against the defendant from 2002.

p. 3

Legal principles established

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  • To prove title by adverse possession, possession must be adequate, continuous, public, in extent and adverse to the registered owner
  • A claim of adverse possession cannot succeed where possession is permissive or under a sale agreement; possession does not become adverse before the permitted period ends

Court orders

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  1. 1.Declaration that the plaintiffs have been in adverse possession of a defined portion of land measuring 21.25 acres in Title No. Bungoma/Ndalu/561
  2. 2.Declaration that the Defendant's title to parcel No. Bungoma/Ndalu/561 was extinguished at the expiry of 12 years since 2002 and cancellation of the title forthwith
  3. 3.Declaration that the plaintiffs, as the Estate of the late John Soita Sinokho, are the proprietors of the 21.25 acres by virtue of adverse possession
  4. 4.Order that the Register be rectified and amended to read the Estate of John Soita Sinokho as proprietors of the suit land measuring 21.25 acres, and the mutation be amended accordingly
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(1)(2) and (3)
  • Limitation of Actions Act (Cap 22)Sections 4(4), 17, 37, 38(1)(2) and (4)
  • Land Registration Act, 2012Section 28(H)

Cases cited (3)

  • Maweu v Liu Ranching and Farming Cooperative Society
    1985 KLR 430
  • Samuel Miki Waweru v. Jane Njeru Richu
    Civil Appeal No. 122 of 2001
  • Jandu v Kirpal
    [1975] EA 225
Jurisdiction invoked
Order 37 Rule 7(1)(2) and (3) of the Civil Procedure Rules; Sections 4(4), 17, 37 and 38(1)(2) and (4) of the Limitation of Actions Act; Section 28(H) of the Land Registration Act, 2012

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, "Sinokho v Wandabwa (Enviromental and Land Originating Summons E002 of 2021) [2024] KEELC 5088 (KLR)", Case Analysis (2024). Not stated in judgment (Amended Originating Summons dated 10/5/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5088/eng@2024-06-27

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