[2011] KEHC 3727 (KLR)
The court found that the applicant had been in continuous, open, and uninterrupted occupation of the six acres since 1974, having purchased the land from the deceased owner and taken immediate possession. The respondents, who became registered proprietors after obtaining letters of administration, did not contest...
Source-derived case information.
- Citation
- [2011] KEHC 3727 (KLR)
- Parties
- Applicant: Bondi Mafwoyo; Respondent: Elizabeth Muko Thelawi; Respondent: Enos Wanjala; Respondent: Isaac Juma
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 98 of 2003
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- originating summons allowed
- Legal Topics
- Adverse Possession, Land Registration, Sale of Land, Succession and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bondi Mafwoyo
Applicant
Elizabeth Muko Thelawi
Respondent
Enos Wanjala
Respondent
Isaac Juma
Respondent
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the applicant is entitled to six acres by adverse possession from land parcel no. N/Kabras/Surunguai/36.
- 2 Whether the interests of the respondents have been extinguished by the applicant's occupation for over twelve years.
- 3 Whether the applicant should be registered as proprietor of the six acres.
Ratio Decidendi
The court found that the applicant had been in continuous, open, and uninterrupted occupation of the six acres since 1974, having purchased the land from the deceased owner and taken immediate possession. The respondents, who became registered proprietors after obtaining letters of administration, did not contest the claim. The applicant's occupation exceeded twelve years, satisfying the requirements for adverse possession under the Limitation of Actions Act. The court was satisfied with the applicant's evidence of occupation and use of the land, including cultivation and construction. Consequently, the applicant was entitled to be registered as proprietor of the six acres to be excised...
Court Disposition
originating summons allowed
Orders
- The applicant shall be registered as proprietor of six (6) acres of land to be excised out of land parcel no. North Kabras/Surungai/36.
- Originating Summons dated 17.12.2003 is allowed in its entirety.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL CASE NO. 98 OF 2003
BONDI MAFWOYO...............................................................................................APPLICANT
V E R S U S
ELIZABETH MUKO THELAWI
ENOS WANJALA........................................................................................RESPONDENTS
ISAAC JUMA
J U D G M E N T
1. In the Originating Summons dated 17. 2.2003, Bondi Mafwoyo claimed that he was entitled to six (6) acres to be excised from land parcel no. N/Kabras/Surunguai/36 which he claims to have occupied since 1974. Further that the interests of the Respondents be deemed to have been extinguished, twelve (12) years after that date and the Applicant be registered as the absolute proprietor of those six (6) acres.
2. I have read the Affidavit in support of the Summons which was sworn on 17. 12. 2003 and I have also read the evidence tendered by him at the hearing. His case is that on 17. 7.1974, he executed a Sale Agreement with one Musungu Werichina (since deceased) and he was to purchase six (6) acres of land to be excised out of land parcel no.36 aforesaid. That he immediately took possession of the land and has been in uninterrupted occupation since then. That on 17. 6.2003, the Respondents were registered as proprietors of the suit land after the 1st Respondent obtained letters of administration to the estate of Musungu (deceased) and the Applicant now desires to have his portion of land excised there-from.
3. I note that although all the Respondents were served, they have never entered appearance and they have failed to respond to the summons or an interlocutory application for orders that any dealings in the suit land be prohibited. G.B.M. Kariuki J. heard that Application and granted the orders as prayed.
4. I have seen the Agreement of Sale and although the land being sold is not identified, I have no reason to doubt the uncontested facts placed before me by the Applicant who has also shown that he has planted sugarcane, trees, beans and rears cattle and sheep on the land aside from building houses thereon.
5. I will allow the Summons with the consequence that the Applicant shall be registered as proprietor of six (6) acres of land to be excised out of land parcel no. North Kabras/Surungai/36 and the Originating Summons dated 17. 12. 2003 is allowed in its entirety save that I shall make no order as to costs since the summons is undefended.
6. Orders accordingly.
Delivered, dated and signed at Kakamega this 10th day of February .2011
ISAAC LENAOLA
J U D G E