Wakwenje & another v Fulafu & another (Environment & Land Case 13 of 2018) [2025] KEELC 4557 (KLR)
The bottom line
#A Kenyan court dismissed a family's adverse possession claim because they never paid the balance of the purchase price for the land they occupied.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs acquired title by adverse possession to land bought under an unperformed sale agreement
The claim fails because the balance of the purchase price was never paid; possession did not become adverse
The court applied the Wambugu v Njuguna principles that a purchaser in possession under a contract of sale only acquires adverse possession after the contract is fully performed or repudiated. Both versions of the 1969 sale agreement showed an outstanding balance (Kshs. 3,658 or Kshs. 658), and the plaintiffs confirmed on cross-examination that the balance remained unpaid. Partial performance is not performance, so time never began to run against the registered owner.
Whether the plaintiffs were in open, continuous, exclusive and adverse possession for over twelve years
Possession was not adverse since it originated from and remained under the sale agreement whose obligations were unfulfilled
The court accepted that the plaintiffs' father took possession under the 1969 sale agreement. Under Wambugu v Njuguna, occupation by a purchaser pending completion is with permission and not adverse; possession only becomes adverse once the contract is repudiated or the last instalment is paid. Since neither occurred, the statutory period of twelve years under the Limitation of Actions Act never commenced in the plaintiffs' favour.
Legal principles established
#- Where a claimant pleads a right to land on an agreement and alternatively seeks an order based on subsequent adverse possession, the claimant's possession is deemed to become adverse to the owner only after payment of the last installment of the purchase price
- Failure to perform part of a contract constitutes failure to perform the whole, so a purchaser who has not paid the balance of the purchase price cannot claim adverse possession
Court orders
#- 1.The Originating Summons dated 29th March 2018 is dismissed
- 2.Costs of the suit awarded to the Respondents
- Jurisdiction invoked
- Environment and Land Court jurisdiction over claims relating to land, suit commenced by Originating Summons under section 38 of the Limitation of Actions Act (Cap. 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakwenje & another v Fulafu & another (Environment & Land Case 13 of 2018) [2025] KEELC 4557 (KLR)", Case Analysis (2025). Originating Summons dated 29th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4557/eng@2025-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.