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ELCAllowedOriginating Summons (Busia ELC) – number not stated in judgment· [2018] KEELC 671 (KLR)

Simon Wang’anya Barasa (suing on his behalf and as Leg. Rep of the estate of Jeremiah Mukwana Barasa) v Dennis Mumia Omenda [2018] KEELC 671 (KLR)

Environment and Land Court
27 November 2018
AKA. K. Kaniaru
1,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court handed a family 2 hectares of land they had openly farmed since 1984, ruling that 12 years of peaceful occupation transferred ownership.

What this practically means

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Executive summary

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The Applicant, Simon Wang'anya Barasa, suing on his own behalf and as legal representative of his late father's estate, brought an Originating Summons under the Limitation of Actions Act, the Land Registration Act and Order 37 of the Civil Procedure Rules against the Respondent, Dennis Mumia Omenda, claiming 2.0Ha excised from parcel BUKHAYO/BUYOFU/896 by adverse possession. The Applicant's case was that the Respondent's late father sold the portion to the Applicant's late father, who went into possession in 1984, cultivating, planting trees and living on the land; both parties to the sale died before transfer was completed, though sub-division had created parcels 1010 and 1011 with the purchaser intended to take 1011. The Respondent was served twice (affidavits of service on record) but neither entered appearance nor filed a response; the matter proceeded as an uncontested application with written submissions. The court found the Applicant's possession continuous, open, notorious, peaceful and without force since 1984, well beyond the twelve-year minimum, and held that the registered owners' discontinued possession ran contemporaneously with the Applicant's exclusive occupation. Relying on Ngati Farmers and Johnson Nehondo, the court held that acts such as cultivation and tree planting are inconsistent with the registered owner's rights, and that a change of ownership does not interrupt the running of time. All eight issues were answered in the affirmative. The court granted all orders sought: a declaration of ownership by adverse possession, an order compelling the Respondent to sign transfer documents (with the Deputy Registrar empowered to sign in default), and costs against the Respondent.

Key legal issues

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01

Whether the Applicant established adverse possession for over twelve years

Holding

Yes; the Applicant's possession since 7/6/1984 was continuous, open, notorious, peaceful and without force, extinguishing the registered owner's title

Reasoning

The court found the possession met all requirements of adverse possession: continuity, publicity and extent over the minimum 12-year period. The registered owners (the Respondent's father and then the Respondent) discontinued possession of the sold portion from 1984 contemporaneously with the Applicant's exclusive occupation. Cultivation, tree planting and living on the land were acts inconsistent with the registered owner's rights, entitling the Applicant to ownership under the Limitation of Actions Act.

p. 2
02

Whether change of registered ownership interrupts adverse possession

Holding

No; time continues to run against successive proprietors

Reasoning

The land was first owned by the Respondent's father, and later the Respondent. The court held that change of ownership does not interrupt the running of time for adverse possession, so the Applicant's possession ran against both proprietors and the claim succeeded against the Respondent as successor to the original registered owner.

p. 2

Legal principles established

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  • Adverse possession requires the harmonious interplay of continuous, open, notorious, peaceful and unforced possession for the minimum period of twelve years
  • Acts such as cultivation, planting of trees and putting up shelters are inconsistent with the rights of the registered owner and reinforce a claim of adverse possession
  • Change of ownership of land occupied by a person in adverse possession does not interrupt the running of time

Court orders

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  1. 1.The Applicant is declared to have acquired ownership and title to a portion of land measuring 2.0Ha by virtue of adverse possession, to be excised from Land Parcel BUKHAYO/BUYOFU/896
  2. 2.The Respondent is ordered to sign all necessary documents for consent for subdivision and transfer of the 2.0Ha to the Applicant, and in default the Deputy Registrar is empowered to sign on the Respondent's behalf
  3. 3.The Respondent to meet the costs of the proceedings

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13, 37, 38
  • Land Registration ActSections 28, 30
  • Civil Procedure RulesOrder 37 Rules 1, 2, 3, 4

Cases cited (2)

  • Ngati Farmers' Co-operative Society Limited Vs Councillor John Ledidi & 15 others
    CA No. 94 of 2004, NAKURU
  • Johnson Nehondo Vs Christopher Nashisako & Another
    CA No. 161 of 2012, KISUMU
Jurisdiction invoked
Sections 7, 13, 37 and 38 of the Limitation of Actions Act (Cap 22); Sections 28 and 30 of the Land Registration Act; Order 37 Rules 1, 2, 3 and 4 of the Civil Procedure Rules

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, "Simon Wang’anya Barasa (suing on his behalf and as Leg. Rep of the estate of Jeremiah Mukwana Barasa) v Dennis Mumia Omenda [2018] KEELC 671 (KLR)", Case Analysis (2018). Originating Summons (Busia ELC) – number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/671/eng@2018-11-27

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