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ELCDismissedOriginating Summons filed on 22nd October 2019 (number not stated in judgment)· [2021] KEELC 61 (KLR)

Evans Walubuka Wepukhulu v Edward Abel Wati alias Edourd Abel Wati [2021] KEELC 61 (KLR)

Environment and Land Court
20 December 2021
3,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused an adverse possession land claim because the claimant's 12-year occupation involved threats and force, not peaceful possession.

What this practically means

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Executive summary

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The plaintiff, Evans Walubuka Wepukhulu, filed an Originating Summons on 22nd October 2019 seeking a declaration that he was entitled to one (1) acre out of title MALAKISI/EAST SASURI/236, registered in the defendant's name, by way of adverse possession, together with an order compelling the defendant to execute transfer documents, or in default, execution by the Deputy Registrar. The plaintiff's case was that in 2007 the defendant sold him the one acre for Kshs. 130,000/= which he paid by cheque; the portion was demarcated, fenced, planted with Eucalyptus trees and he occupied it openly and exclusively since 2007, exceeding the 12-year statutory period. The defendant denied this, asserting the agreed price was Kshs. 300,000/=, of which only Kshs. 130,000/= was paid; that the plaintiff refused to pay the balance of Kshs. 170,000/=; that he reported the plaintiff to the Chief and the police for threats to kill; and that the plaintiff's occupation was not peaceful. The court, applying the Limitation of Actions Act and Court of Appeal authority, found that although the plaintiff's occupation exceeded twelve years and was exclusive, open and notorious, it failed the essential element of peaceful possession (nec vi, nec clam, nec precario). Evidence of threats to kill reported at Chesikaki Police Station, and the plaintiff's failure to rebut the advocate's letter asserting a Kshs. 300,000/= price, showed the possession was by force and stealth. The Originating Summons was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff's occupation of the one (1) acre since 2007 matured into adverse possession

Holding

Although occupation exceeded 12 years and was exclusive, open and notorious, it was not peaceful; the claim fails

Reasoning

The court accepted that the plaintiff took possession in 2007, demarcated the portion, planted Eucalyptus trees and had been in occupation beyond the 12-year statutory threshold with the defendant's knowledge. However, adverse possession also requires peaceful possession without force or stealth. The defendant reported threats to kill to the police (Police Abstract dated 21st November 2015), and the plaintiff never rebutted the advocate's letter asserting the purchase price was Kshs. 300,000/=. The possession was therefore by force and stealth and the claim failed.

p. 4
02

The terms of the oral agreement for sale of the one (1) acre

Holding

The court found the full purchase price was likely Kshs. 300,000/= as the defendant asserted, since the plaintiff did not rebut the advocate's letter to that effect

Reasoning

The agreement was oral and its terms rested on one party's word against the other. Surrounding circumstances showed the defendant's advocate wrote on 21st November 2015 accusing the plaintiff of failing to pay the balance of Kshs. 170,000/= from a total price of Kshs. 300,000/=. The plaintiff did not rebut the letter or report the alleged misrepresentation to the police, which the court took as tacit acceptance that the full price was Kshs. 300,000/=, and that his possession was attended by threats rather than peace.

p. 4

Legal principles established

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  • The combined effect of Sections 7, 13 and 17 of the Limitation of Actions Act extinguishes the title of the registered proprietor in favour of an adverse possessor at the expiry of twelve years of adverse possession
  • A claimant for adverse possession must prove exclusive, open possession as of right, without interruption for 12 years, either after dispossessing the owner or discontinuation of possession by the owner
  • Possession must be nec vi, nec clam, nec precario - without force, secrecy or permission - and must be peaceful, continuous, open and notorious
  • Adverse possession may be claimed for only a portion of land, not necessarily the whole
  • The registered proprietor can interrupt adverse possession only by filing a suit; mere writing of letters is insufficient

Court orders

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  1. 1.The plaintiff's Originating Summons is dismissed
  2. 2.The plaintiff shall pay the costs of the suit to the defendant
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - application to the High Court for an order that the adverse possessor be registered as proprietor

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, "Evans Walubuka Wepukhulu v Edward Abel Wati alias Edourd Abel Wati [2021] KEELC 61 (KLR)", Case Analysis (2021). Originating Summons filed on 22nd October 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/61/eng@2021-12-20

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