[2015] KEHC 3169 (KLR)
The court found that the applicant and his predecessor had been in continuous, peaceful, and uninterrupted occupation of the 3 ½ acres of the suit land since 1968, with clear demarcation and knowledge of the beneficiaries. The applicant's possession exceeded the statutory period of 12 years required for adverse...
Source-derived case information.
- Citation
- [2015] KEHC 3169 (KLR)
- Parties
- Applicant: George Wepukhulu; Defendant: Alfred Wafula Khauka (Administrator of the Estate of the late Luka Masakha)
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2014
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- judgment for the applicant
- Judges
- SN Mukunya
- Legal Topics
- Adverse Possession, Succession and Inheritance, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Wepukhulu
Applicant
Alfred Wafula Khauka (Administrator of the Estate of the late Luka Masakha)
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the applicant has acquired 3 ½ acres of the suit land by adverse possession.
- 2 Whether the 3 ½ acres occupied by the applicant should have been excluded from the estate of Luka Masakha during succession proceedings.
- 3 Whether the applicant is entitled to registration of the 3 ½ acres in his name absolutely.
Ratio Decidendi
The court found that the applicant and his predecessor had been in continuous, peaceful, and uninterrupted occupation of the 3 ½ acres of the suit land since 1968, with clear demarcation and knowledge of the beneficiaries. The applicant's possession exceeded the statutory period of 12 years required for adverse possession. The court held that by the time the grant of letters of administration was confirmed, the applicant had already acquired title to the 3 ½ acres by adverse possession. Consequently, the land was not available for distribution in the succession cause, and the applicant was entitled to be registered as the absolute owner of the 3 ½ acres.
Court Disposition
judgment for the applicant
Orders
- The 3 ½ acres occupied by the applicant shall be surveyed and a separate title shall issue.
- The 3 ½ acres shall be hived from the suit land and registered in the name of the applicant absolutely.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT & LAND CASE NO.11 OF 2014
GEORGE WEPUKHULU…………………………......….....………..APPLICANT
VERSUS
ALFRED WAFULA KHAUKA Administrator of the
Estate of the late LUKA MASAKHA……………………...………..DEFENDANT
JUDGEMENT
The Plaintiff ‘s father bought 3 ½ acres in 1968 from Luka Masakha. Those three acres were to be hived off from Land Parcel No. East Bukusu/South Kanduyi/121.
Part of the purchase of the said 3 ½ acres included the paying of school fees of the vendor’s children in President Kennedy High School in Kitale. The plaintiff’s father took possession of the said land in 1988. The land had clear demarcation. The plaintiff took this land later in the year 1988.
The plaintiff avers that since 1988 to date he has been in a continuous and peaceful occupation of the same. That the registered owner Luka Masakha died leaving the plaintiff applicant in the suit land.
That thereafter the son of Luka Masakha one Alfred Wafula Khauka filed a Succession Cause in the High Court at Bungoma Succession Cause No.15 of 1999 a certificate of confirmation of Grant was issued to the said Alfred Khauka on 30/1/2013 and the land was distributed to the deceased beneficiaries
Alfred Wafula Khauka – 6. 4 acres
Gabriel Benard Masakha – 4. 7 acres
Stephen Wafula Masakha – 4. 7 acres
Felistas Namalwa Masakha – 4. 7 acres
Hesbon Wafula Masakha – 5. 5 acres
Redempter Nanyama Masakha – 5. 5 acres
The applicant avers that the beneficiaries deliberately left out the applicant in the Succession Cause though they knew he was on the land.
The applicant states that the respondent is the administrator of the estate of Luka Masakha aforesaid.
The applicant avers that by the time this grant was confirmed in 2014, he had already acquired 3 ½ acres of the same, the area he occupies by adverse possession for being on the land for a period in excess of 12 years.
The applicant says that the area he occupies has no dispute with the heirs. He says he is still on the ground and fully in occupation of the 3 ½ acres that are well demarcated. The hearing notice for this case for 08/06/2015 was served on the respondent by Mr. Peter Masika on 13/4/2015. Despite the Respondent never attended the hearing. There is no doubt that the applicant has been in peaceful continuous, and un interrupted occupation of 3 ½ acres of the suit land since 1968. He put his house in 1996. The area he has occupied is distinctively marked. It is known to the respondent.
No one has challenged this originating summons. By the time the respondent was granted the letters of administration of the estate of the late Luka Masakha, the applicant had acquired title by adverse possession of 3 ½ acres. This fact which was known by the beneficiaries should have been disclosed to the Succession Court. The 3 ½ acres were therefore not available for distribution as part of the estate of Luka Masakha. The heirs knew this since the applicant herein has lived there all along.
Indeed he is still there now.
I do order that the 3 ½ acres in which the applicant occupies shall be surveyed and a separate title shall issue. The same shall be hired from the suit land. The said 3 ½ acres shall be registered in the name of the applicant absolutely.
The Land Registrar Bungoma shall ensure that no further transaction shall be registered on the suit land until the 3 ½ acres are registered in the name of the applicant.
These are the orders of the Court.
DATED at BUNGOMA this30thday ofJuly,2015
S. MUKUNYA
JUDGE