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ELCDismissedOriginating Summons dated 8th January 2019· [2024] KEELC 6037 (KLR)

Asengo & another v Tadayo (Enviromental and Land Originating Summons 1 of 2019) [2024] KEELC 6037 (KLR)

Environment and Land Court
23 September 2024
DOD. O. Ohungo
2,389 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega dismissed a family land claim, ruling that adverse possession does not apply between close relatives in Kenya.

What this practically means

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Executive summary

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The Applicants filed an Originating Summons dated 8 January 2019 seeking to be registered as proprietors of Kakamega/Lumakanda/287 on the basis of over 40 years of adverse possession, and seeking declaration that the Respondent's title was extinguished, plus costs. They testified that the land was given to their father in exchange for another parcel, that they entered in 1980, built houses and farmed the land, while the Respondent never lived there. The Respondent (who died during trial and was substituted by his widow, Catherine Leah Mudanya) opposed, asserting the occupation was beset by acrimony, prior litigation (Nairobi HCCC No. 410 of 1992 and Vihiga CMCC No. 31 of 2010) and a settlement agreement of 29 December 2015. The court, framing the issues as whether adverse possession was established and whether the reliefs should issue, held adverse possession inapplicable between close relatives following Samuel Kihamba v Mary Mbaisi, noting the claim was rooted in family and contractual (exchange) arrangements rather than hostile dispossession. Further, the December 2015 clan meeting on ownership and the two prior suits broke any continuity, so the requisite 12 years of peaceful, uninterrupted possession had not accrued by filing on 11 January 2019. The suit was dismissed with no order as to costs, considering the family relationship between the parties. Judgment delivered at Kakamega on 23 September 2024 by D. O. Ohungo, Judge.

Key legal issues

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01

Whether adverse possession can be established between close family members

Holding

No - the familial and contractual basis of the Applicants' occupation precludes adverse possession

Reasoning

The parties are cousins and the Applicants framed their claim on ancestral land and a land exchange, indicating a family and contractual relationship. Applying Samuel Kihamba v Mary Mbaisi, the court held adverse possession is inapplicable within families, and under s.13(1) of the Limitation of Actions Act no limitation period could run in the Applicants' favour absent wrongful dispossession.

p. 4
02

Whether the Applicants had 12 years of peaceful, uninterrupted possession

Holding

No - the December 2015 meeting and prior litigation interrupted any claim of quiet possession

Reasoning

Both sides agreed a meeting on ownership occurred in December 2015; the suit filed on 11 January 2019 came less than five years later. Nairobi HCCC No. 410 of 1992 and Vihiga CMCC No. 31 of 2010 also broke any continuity of possession, so 12 years of quiet possession prior to filing was not proved.

p. 5

Legal principles established

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  • Adverse possession does not apply within families against close relatives
  • A claimant must prove peaceful, uninterrupted, open and hostile possession for 12 years with the knowledge of the registered proprietor

Court orders

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  1. 1.The Applicants' case is dismissed
  2. 2.No order as to costs, considering the family relationship between the parties

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1)
  • Limitation of Actions ActSections 1, 17 and 38 (pleaded); s.38(1)

Cases cited (4)

  • Richard Wefwafwa Songoi v Ben Munyifwa Songoi
    [2020] eKLR
  • Samuel Kihamba v Mary Mbaisi
    [2015] eKLR
  • Loise Nduta Itotia v Aziza Said Hamisi
    [2020] eKLR
  • Kimani Ruchire vs Swift Rutherford & Co. Ltd.
    [1980] KLR 10
Jurisdiction invoked
Sections 7, 13(1) and 38(1) of the Limitation of Actions Act - application to the High Court (s.38) for registration as proprietor by adverse possession, transferable to the Environment and Land 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, "Asengo & another v Tadayo (Enviromental and Land Originating Summons 1 of 2019) [2024] KEELC 6037 (KLR)", Case Analysis (2024). Originating Summons dated 8th January 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6037/eng@2024-09-23

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