Amos Kiluyi Simiyu v Augustine Masinde & another [2016] KEELC 524 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was there a sale of a portion of land between Augustine Masinde, Priscillah Asami and Amos Kiluyi Simiyu as alleged in HCC 76 of 2008?
- 2.Did Priscillah Asami acquire land by adverse possession to the extent of ¾ of an acre or thereabouts from Amos Kiluyi Simiyu in Land Parcel East Bukusu/North Kanduyi/1746?
- 3.Is Amos Kiluyi Simiyu entitled to evict the said Priscillah Asami from the suit land on account of a failed contract of sale?
Key legal issues
#Existence of a sale agreement
There was an agreement dated 10/10/1996 for sale of one acre (with house, kitchen and toilet) for a total of Kshs.247,000/=, with Kshs.60,000/= down payment; the purchase price was never completed
The agreement signed by the seller and Joash Murundu was produced in court, together with acknowledgements showing a balance of Kshs.19,000/= by 30/11/2000. Both sides agreed the purchase price was not completed, differing only on the amount outstanding. The land is in a land control area and no consent to subdivide or transfer was obtained.
Adverse possession
Claim failed; no adverse possession was established
The agreement was open-ended and only became void when the purchaser died in 2004, so time could not run before then; moreover the parties agreed the defendant left the land in 2008, and the suits were filed in December 2008 and January 2009. Adverse possession requires occupation without force and without notice from the registered owner.
Entitlement to recover the land
Plaintiff entitled to recover his land upon refunding Kshs.141,000/= paid by the defendant
With the sale agreement void on the purchaser's death, no occupation by the purchaser or his family, and no adverse possession, the registered owner is entitled to recover the land. Equity required refund of the part payment of Kshs.141,000/= made by the defendant.
Legal principles established
#- For adverse possession to have any basis, one must have stayed on the land of the registered owner without force and without notice from the registered owner; entry must be through trespass or a sale that became void
- An open-ended agreement of sale that was not completed became void on the death of the purchaser, and time for adverse possession could only run from that point
Court orders
#- 1.Plaintiff entitled to recover his land parcel East Bukusu/North Kanduyi/1746
- 2.Plaintiff to refund Kshs.141,000/= paid by the defendant
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel East Bukusu/North Kanduyi/1746; consolidated files directed by consent recorded on 18/12/2013
- Consolidated with
- Bungoma HCCC No. 76 of 2008 (adverse possession suit by defendants, deemed the defence/counterclaim)
Relief refused
#Defendants' claim for adverse possession of ¾ acre (or ½ acre as claimed on oath)
No adverse possession could accrue because the open-ended agreement of sale only became void on the purchaser's death in 2004, and the parties agreed the defendant had left the land in 2008
Rescission/forfeiture of the agreement with no refund
Court ordered refund of part payment instead
Costs
Each party shall bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For a case of adverse possession to have any basis, one must have stayed in the land of the registered owner, without force and without being given a notice by the registered owner. The entry must be through trespass or sale that became void for one reason or another.
On the death of the said Joash the same became boid for lack of completion and the same equally naturally died.
There being an open ended agreement of sale that became void on the death of the purchaser and there being no occupation by the purchaser and or his family and there being no adverse possession as earlier stated, the Plaintiff is entitled to recover his land. He will however refund Kshs.141,000/= paid by the defendant each party shall bear their own costs.
Issues in the judgment
#Internal inconsistency on the date of the sale agreement - described as 10/10/1996 in evidence but later stated as 2006
Internal inconsistency on when the purchaser died - 2003 in the defence, 2004 in the plaintiff's evidence and in the court's holding
Inconsistency in the quantum of the balance outstanding - plaintiff said Kshs.100,000/=, defendants said Kshs.19,000/=, yet court ordered refund of Kshs.141,000/=
The judgment refers to the defendants/respondent inconsistently by gender ('the respondent says she was allowed...' and 'the ¾ acre and or ½ acre he claims in his pleadings')
Judgment records consent dated 18/12/2013 directing 'Land file No. 124 of 2014' as the lead file although the suit is ELC 124 of 2013 filed 19/12/2008
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amos Kiluyi Simiyu v Augustine Masinde & another [2016] KEELC 524 (KLR)", Case Analysis (2016). ELC 124 of 2013 (consolidated with Bungoma HCCC No. 76 of 2008; originating from Bungoma CMCC No. 759 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/524/eng@2016-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.