[2017] KEHC 1542 (KLR)
The court found that the applicant entered into possession of the suit land NDIVISI/NDIVISI/1640 in 1996 following a sale agreement, paid the full purchase price, and remained in open, continuous, and exclusive occupation for over 12 years without interruption or notice to vacate. The sale agreement became void for...
Source-derived case information.
- Citation
- [2017] KEHC 1542 (KLR)
- Parties
- Plaintiff: Joseph Mumero Wanyama; Defendant: Jared Wanjala Lyani; Defendant: Hesborn Murule Lusweti
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 26 of 2011
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Originating Summons allowed; judgment for the applicant with costs.
- Judges
- SN Mukunya
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Control Consent, Title Extinguishment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mumero Wanyama
Plaintiff
Jared Wanjala Lyani
Defendant
Hesborn Murule Lusweti
Defendant
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the applicant has been in open, continuous, adverse, and peaceful occupation of Land Parcel NDIVISI/NDIVISI/1640 for over 12 years.
- 2 Whether the respondent's title over the said parcel has been extinguished by operation of law.
- 3 Whether the applicant should be registered as proprietor of NDIVISI/NDIVISI/1640 in place of the respondent.
Ratio Decidendi
The court found that the applicant entered into possession of the suit land NDIVISI/NDIVISI/1640 in 1996 following a sale agreement, paid the full purchase price, and remained in open, continuous, and exclusive occupation for over 12 years without interruption or notice to vacate. The sale agreement became void for lack of Land Control Board consent, but the applicant's possession was adverse to the title holder. The defendants did not contest the applicant's evidence. Applying the principles of adverse possession and the relevant statutory provisions, the court held that the respondent's title was extinguished by operation of law and the applicant had acquired title by adverse...
Court Disposition
Originating Summons allowed; judgment for the applicant with costs.
Orders
- Plaintiff's Originating Summons succeeds with costs to the applicant.
- Applicant to be registered as proprietor of NDIVISI/NDIVISI/1640 in place of the respondent.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
CIVIL SUIT NO. 26 OF 2011 (O.S.)
IN THE MATTER OF LAND REFERENCE NO. NDIVISI/NDIVISI/1640
AND.
IN THE MATTER OF SECTIONS 7, 17 AND 38 OF THE LIMITATIONS OF ACTIONS ACT.
AND.
IN THE MATTER OF ADVERSE POSSESSION
BETWEEN
JOSEPH MUMERO WANYAMA…………………………......PLAINTIFF
VERSUS.
JARED WANJALA LYANI……………………………….1ST DEFENDANT
HESBORN MURULE LUSWETI………………………..2ND DEFENDANT
JUDGMENT.
[1]. The applicant plaintiff in this case filed an Originating Summons which was amended on 19th May, 2002 asking the court to determine the following questions;
1. Whether or not the Applicant herein has been in occupation of Land Parcel Number NDIVISI/NDIVISI/1640 measuring 0. 8 Hectares, openly, continuously, adversely and peacefully for a period exceeding 12 years.
2. Whether or not the Respondent’s title over the said parcel of land has been extinguished by operation of the law.
2. (a) Whether or not the 1st Respondent’s title over the said parcel of land has been extinguished by operation of the law.
3. Whether or not the court should order the Applicant to be registered as the proprietor of the said Land Parcel Number NDIVISI/NDIVISI/1640 in the place of the Respondent herein.
3. (a) Whether or not the court should order the Applicant to be registered as the proprietor of the said land parcel number NDIVISI/NDIVISI/1640 in the place of the 1st Respondent herein.
4. Whether or not the Applicant has become entitled to all that land known as NDIVISI/NDIVISI/1640 by the concept of adverse possession.
4. (a) Whether the 1st Respondent has no good title to transfer to the 2nd Respondent.
4. (b) Whether the 2nd Respondent’s entry on the suit land is unlawful.
4. (c) Whether the 2nd Respondent should be evicted from the suit land.
[2]. The applicant gave evidence and stated that she entered into land sale agreement on 22/05/1996 for two acres out of land parcel number Ndivisi/Ndivisi/1522. The land was sold at a consideration of 120,000 which was duly paid in full.
The agreement of sale said that, what was sold is the two acres but the costs of the trees and bananas therein was to be agreed on later. In 1996 the vendor subdivided the land into three portions. The land with trees and bananas negotiated by the applicant was resold to someone else one Joseph Barasa Matinyo. So the Plaintiff took up the portion that had no trees and bananas. This was Ndivisi/Ndivisi/1640. However, the respondent never transferred this piece of land to the applicant. The respondent was left with the rest of the land. The applicant continued to occupy Ndivisi/Ndivisi/1640 since 1996 to 20th March, 2011 when they discovered that this land had been sold to the 2nd defendant.
[3]. During the hearing the applicant relied on his written statement and produced various exhibits including agreement for sale search certificate green card of Ndivisi/Ndivisi 1552 and its Subdivisions No.1641 and 1642.
[4]. The applicant called Simiyu Sitima who relied on his written statement dated 26/6/2014. He said that the plaintiff bought his land in 1996 and that an agreement was done on 22/5/1996. The witness said that the applicant had used the land for 14 years up to 2011.
[5]. The defendants herein offered no evidence since they did not attend the hearing.
[6]. There is no doubt that land parcel Ndivisi/Ndivisi/1552 was an agribultural land. Its subdivision to 1640 1641 and 1642 was subject to land Control Act. The sale agreement for sale of 2 acres out of Ndivisi/Ndivisi/1552 between Jared Wanjala Lyani and Joseph Mumelo Wanyama the applicant herein was equally subject to the land Control Act.
[7]. The agreement of sale of the said land was dated 22nd day of May 1996. Land Control was to be obtained within 6 months. By November 22nd 1996 the said sale had become void for lack of land control Consent.
[8]. The plaintiff said that in 1996, he had been shown the resultant Subdivision Ndivisi/Ndivisi/1640. That he occupied the same in 1996. He said that there has been no Notice to him to move and vacate out of the said land until 2011 when he saw the 1st defendant trying to sell the said portion he occupied to the 2nd defendant. The applicant states that by this time he had been on the land for fourteen years. That he had acquired this land by adverse possession.
[9]. The applicant states that he had completely disposed the possession of the 1st respondent and had continued in his possession of the same. That this is the dicta stated in the case of Wambugu versus Njuguna in Civil Appeal No. 10 of 1982.
[10]. Having heard the evidence of the applicant and his witnesses and that evidence not having been controverted in any way, the 1st 2nd and 3rd 4th and 5th question is answered in the affirmative.
As a consequence thereof the plaintiff Originating Summons succeeds with costs to the applicant.
Judgment read in Open Court in the presence of Mr. Tsimonjero.
DatedatBungomathis20thday ofDecember, 2017.
S. MUKUNYA
JUDGE
In the presence of:
Hon. S. Mukunya (Judge)
Joy: Court Assistant
Mr. Tsimonjero for the Plaintiff
Defendant is represented by the Firm of Kiveu - Absent