[2012] KEHC 3848 (KLR)
The court found that the plaintiff had been in open, peaceful, and continuous possession of the suit land, KAKAMEGA/LUBAO/95, for over 12 years, having been born on the land, lived there with her parents, and continued to reside and cultivate the land after their deaths. The defendant, though registered as...
Source-derived case information.
- Citation
- [2012] KEHC 3848 (KLR)
- Parties
- Plaintiff: Robai Naziaka Bwonywa; Defendant: Harrun Masinde
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 16 of 2010
- Procedural Posture
- Civil Case / Judgment
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Adverse Possession, Land Ownership, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robai Naziaka Bwonywa
Plaintiff
Harrun Masinde
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff has acquired title to KAKAMEGA/LUBAO/95 by adverse possession.
- 2 Whether the plaintiff's occupation was open, peaceful, and continuous for at least 12 years.
Ratio Decidendi
The court found that the plaintiff had been in open, peaceful, and continuous possession of the suit land, KAKAMEGA/LUBAO/95, for over 12 years, having been born on the land, lived there with her parents, and continued to reside and cultivate the land after their deaths. The defendant, though registered as proprietor, had not occupied or asserted rights over the land since the late 1970s. The evidence was unchallenged and corroborated by a neighbor. The court concluded that the plaintiff had satisfied the requirements for adverse possession under Kenyan law and was entitled to be registered as the proprietor of the land.
Court Disposition
application allowed
Orders
- The applicant shall be the registered proprietor of the whole parcel of land known as KAKAMEGA/LUBAO/95.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL CASE 16 OF 2010
ROBAI NAZIAKA BWONYA ............................................................. PLAINTIFF
V E R S U S
HARRUN MASINDE ...................................................................... DEFENDANT
JUDGMENT
In the Originating Summons dated 2nd February 2010, ROBAI NAZIAKA BWONYA,the Plaintiff/Applicant, claimed to have been in occupation of and/or possession of the whole of parcel of land known as KAKAMEGA/LUBAO/95 for a period of 12 years or more, openly, peacefully, continually and without force.
I have read the affidavit in support of the Summons sworn on the 2nd February 2010 and I have also considered the evidence tendered at the hearing.
The Defendant/Respondent did not enter appearance though duly served. The case proceeded exparte. The evidence from the applicant, PW1 ROBAI NAZIAKA BWONYA is that she was born on the land in question in 1975. That she continued living on the said land with her parents and when her father and mother passed away in the year 2006 and the year 2008 respectively, they were buried on the said land. The applicant who was the only surviving offspring of her parents continued living on the said land and cultivated the land openly without any disturbance from anybody. That the title Deed of the land is in the name of the Respondent, HARRUN MASINDE who lives in Sango Scheme and has never set foot on the land in question since the late 1970’s.
PW2, CHARLES SHIMOSA MYEMBELEwho is a neighbour to the applicant corroborated the applicant’s evidence and added that he knew that the applicant’s father had bought the land in question in the 1970’s from the Defendant.
Upon considering the evidence on record, I have no reasons to doubt the evidence adduced before this court by the applicant’s side. The applicant has also shown that she has planted food crops and sugarcane on the land in question and also built a house thereon.
Consequently, I allow the application. The applicant shall be the registered proprietor of the whole parcel of land known as KAKAMEGA/LUBAO/95. No order as to costs since the suit is undefended.
Orders accordingly.
Delivered, dated and signed at Kakamega this 24th day of May, 2012
B. THURANIRA JADEN
JUDGE