Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherBungoma High Court Civil Suit (Originating Summons) arising from Kimilili; number not stated in judgment

Godfrey Wanjala Wafula & Kololi Wafula Nasiombeanother v Jairus Wakhungu Nalunda [2018] KEELC 3891 (KLR)

High Court of Kenya
28 March 2018
909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Bungoma court ruled family members occupying another relative's land for years must vacate, because occupation alone did not defeat his registered title.

What this practically means

#

Executive summary

#
The plaintiffs filed an originating summons on 28 February 2005 seeking declarations that they and the late Wafula Mulunda John had been in open, peaceful and continuous occupation of 2.3 acres of Kimilili/Kibingei/216 for over twelve years, that title by adverse possession had accrued, that the respondent's title was extinguished, and that the respondent held the 2.3 acres in trust for the deceased's estate, with an order that they be registered as proprietors. On 23 February 2016 counsel for the plaintiffs withdrew the suit, with costs to the defendant, who was allowed to proceed to formal proof on his counterclaim, which was unopposed. An application dated 12 May 2017 seeking to set aside the formal proof order and for leave to file a counterclaim out of time was dismissed on 1 March 2018 as an attempt to resurrect the withdrawn suit. In his evidence the respondent, Jairus Wakhungu Mulunda, testified that the parcel was bought by his father and given to him alone as a gift inter vivos with Land Control Board approval; that a land disputes tribunal award of 2.3 acres to the applicants' father was quashed on judicial review in Bungoma HCC 53 of 1998; that the resulting subdivisions were cancelled; and that the applicants invaded in 1991 and harassed him until he left in 2006. The court found the respondent's case proved on a balance of probability, ordered the applicants to vacate, failing which eviction by the court broker with police assistance, and awarded the respondent the costs of the suit and the eviction. Judgment was delivered at Bungoma on 28 March 2018 by S. Mukunya, Judge.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants and Wafula Mulunda John prior to his demise had been in occupation of and/or in possession of 2.3 acres comprised in TITLE NO. KIMILILI/KIBINGEI/216 for a period of more than 12 years, openly, peacefully, continuously and/or without force
  2. 2.Whether the applicants and/or Wafula Mulanda John (deceased) had acquired Title to the said 2.3 acres by adverse possession
  3. 3.Whether the respondent's Title to the said 2.3 acres was extinguished by operation of Law
  4. 4.Whether the plaintiff's registration of Title No. KIMILILI/KIBINGEI/216 conferred a trust obligation to hold 2.3 acres in trust for the Estate of Wafula Mulanda John and/or lawful personal representatives
  5. 5.Whether the applicants should be registered as proprietors of the 2.3 acres

Key legal issues

#
01

Whether adverse possession was established over 2.3 acres of Kimilili/Kibingei/216

Holding

No. The suit was withdrawn before determination and the respondent proved ownership; occupation of the respondent's land did not extinguish his title

Reasoning

The plaintiffs withdrew their originating summons in 2016, leaving only costs, so the adverse possession questions were never judicially determined. The respondent then proved his counterclaim: the land was bought by his father and given to him as a gift inter vivos with Land Control Board approval, title stands in his name, and any occupation following the invasion of 1991 and the quashed tribunal award could not confer title on the applicants.

p. 2
02

Whether orders of the land disputes tribunal could found the applicants' claim

Holding

No. The tribunal award was quashed on judicial review and the resultant subdivisions cancelled

Reasoning

The land disputes tribunal awarded the applicants' father 2.3 acres, but the respondent successfully sought judicial review in Bungoma HCC 53 of 1998 and the tribunal orders were quashed. The brother nonetheless used the tribunal orders to subdivide the parcel into Kimilili Kibingei 2414 and 2415, and the respondent had those numbers cancelled through Kimilili Miscellaneous Civil Suit No. 4 of 1995. The tribunal award therefore conferred no enforceable rights on the applicants.

p. 1
03

Whether the respondent's title was subject to a trust for the estate of Wafula Mulunda John

Holding

No trust was established

Reasoning

The respondent testified that Kimilili/Kibingei/216 was given to him alone by his father, that the Land Control Board approved the transaction, and that he never exchanged the land with the late John Wafula Mulunda. The original title and green card were produced in the respondent's name. On that evidence the court found the land was the respondent's alone, defeating the pleaded trust and extinguishment claims.

p. 2

Legal principles established

#
  • A party claiming adverse possession must prove open, peaceful, continuous occupation for the statutory period notwithstanding the registered owner's title
  • Civil claims are determined on the balance of probability, and a registered owner who proves his title prevails

Court orders

#
  1. 1.The originating summons was withdrawn by the plaintiffs with costs to the defendant
  2. 2.The defendant was allowed to fix his counterclaim for hearing and serve the applicant
  3. 3.The application dated 12/5/2017 seeking to set aside the formal proof order and for leave to file a counterclaim out of time was dismissed on 1/3/2018
  4. 4.The defendant's counterclaim succeeded: the land Kimilili/Kibingei/216 is his alone and the applicants should move out and vacate it
  5. 5.If the applicants do not move out, the respondent may evict them by the court broker with the help of the nearest police station
  6. 6.The respondent was awarded the costs of the suit and costs of the eviction

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the High Court over land claims (originating summons for adverse possession; not expressly stated in judgment)

Relief refused

#

Applicants' claim to be registered as proprietors of 2.3 acres by adverse possession

The suit was withdrawn and the counterclaim proved the land belongs to the respondent; occupation did not mature into title

p. 2

Claim that respondent's title was extinguished or subject to a trust

No exchange or trust established; title produced in respondent's name

p. 2

Costs

The respondent shall have the costs of the suit and costs of the said eviction; the withdrawn originating summons was withdrawn with costs to the defendant.

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.

The Court ruled that the applicant was allowed to withdraw his originating summons with costs to the defendant. The defendant was allowed to fix there counterclaim for hearing and serve the applicant.
p. 1Withdrawal of originating summons and continuation of counterclaim
The application which was an attempt to resurrect the withdrawn suit was dismissed by the court on 1/3/2018.
p. 1Abuse of process - attempt to resurrect withdrawn suit
Having heard the evidence of the respondent, I am satisfied that he has proved his case on the balance of probability. The land is truly his alone.
p. 2Standard of proof and finding on ownership
It was a gift intervivo. The applicants should move out and vacate the same.
p. 2Gift inter vivos and order to vacate
If they do not move out, the respondent shall have them evicted by the court broker with the help of the nearest police station. The respondent shall have the costs of the suit and costs of the said eviction.
p. 2Final orders - eviction and costs

Issues in the judgment

#
minor

The court describes the originating summons as filed by 'applicants' yet the withdrawing party and counsel for the 'plaintiffs' are the same persons; roles are used interchangeably

minor

The name of the deceased appears in variant spellings within the same judgment (Wafula Mulunda John / WAFULA MULANDA JOHN / John Wafula Mulunda)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Godfrey Wanjala Wafula & Kololi Wafula Nasiombeanother v Jairus Wakhungu Nalunda [2018] KEELC 3891 (KLR)", Case Analysis (2018). Bungoma High Court Civil Suit (Originating Summons) arising from Kimilili; number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3891/eng@2018-03-28

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