[2012] KEHC 2387 (KLR)
The court found that the plaintiff had been in open, peaceful, and uninterrupted possession of the suit land since August 1982, with the knowledge of the defendant. The plaintiff's occupation was corroborated by a witness and documentary evidence. The defendant, despite being served, did not contest the claim. The...
Source-derived case information.
- Citation
- [2012] KEHC 2387 (KLR)
- Parties
- Plaintiff: Stephen Tenga Muthayo; Defendant: Lukongo Shihaka alias Wilson Lukongo Shaka
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 186 of 2009
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff as prayed
- Legal Topics
- Adverse Possession, Limitation of Actions, Land Registration, Trusts in Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Tenga Muthayo
Plaintiff
Lukongo Shihaka alias Wilson Lukongo Shaka
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff has acquired title to a portion of land by adverse possession.
- 2 Whether the defendant's rights over the portion of land have been extinguished by operation of law.
- 3 Whether the plaintiff is entitled to be registered as owner of the portion of land.
Ratio Decidendi
The court found that the plaintiff had been in open, peaceful, and uninterrupted possession of the suit land since August 1982, with the knowledge of the defendant. The plaintiff's occupation was corroborated by a witness and documentary evidence. The defendant, despite being served, did not contest the claim. The court held that the requirements for adverse possession under Section 38 of the Limitation of Actions Act had been satisfied, and the plaintiff was entitled to be registered as owner of the portion of land. The defendant's rights over the land were extinguished by operation of law.
Court Disposition
judgment for the plaintiff as prayed
Orders
- The plaintiff is declared entitled to the portion measuring approximately 2 acres of land Title No. S/KABRAS/CHESERO/669 by adverse possession.
- The defendant's rights over the said portion are extinguished.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
Civil Case 186 of 2009
STEPHEN TENGA MUTHAYO........................................................................................................PLAINTIFF
VERSUS
LUKONGO SHIHAKA alias WILSON LUKONGO SHAKA......................................................DEFENDANT
JUDGMENT
The Originating Summons dated 30. 11. 2009 seeks the following orders:-
(a)An order that the respondent’s rights over a portion measuring more or less 2 acres of land Title No. S/KABRAS/CHESERO/669 got extinguished by adverse possession.
(b)An order that upon expiry of 12 years since August 1982 when the applicant was in possession of a portion measuring more or less 2 acres of land Title No. S/KABRAS/CHESERO/669 the respondent held and currently holds the same in trust for the applicant.
(c)An order under Section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya that the applicant be registered as owner of the said portion.
(d)An order that the respondent do execute all transfer documents in favour of the applicant to permit registration as sought in (c) above failing which the Deputy Registrar of this Honourable Court be empowered to execute any such documents on behalf of the respondent.
(e)An order that the respondent be condemned to pay the costs of this suit.
(f)Such further orders or relief the Honourable Court may deem fit to grant.
In his evidence before the court and the supporting affidavit sworn by the plaintiff on 30. 11. 2009, the plaintiff’s case is that on 13. 8.1982, the plaintiff bought a portion of land from the defendant from the suit land at the price of Kshs.10,200/=. A sale agreement was written. The consent of the Land Control Board was obtained.
However, it turned out that the defendant’s name as reflected in his relevant identify card differed with the name on the Land Register. The defendant was required to correct his names as appearing on the identity card. In one of the documents the defendant’s name appeared as WILSON SHIHAK while in the other the name appeared as LUKONGO SHIHAKA. The defendant did not effect the name change. The plaintiff took possession of the portion of land that he purchased. He has grown trees and food crops on the land and built houses there for his family and lives on the land openly without any disturbance from the defendant.
According to the plaintiff, there exists a boundary between his parcel of land and the defendant’s. The boundary features include trees and sisal plants.
The plaintiff’s evidence is fully corroborated by that of PW2 CLEOPHAS SHITERO who is his brother and a witness to the sale agreement (exh.1).
Although the defendant was duly served with the Originating Summons, he did not enter appearance. The case proceeded exparte.
Bases on the evidence on record, I am satisfied that the plaintiff has been in occupation of the suit land since August, 1982 openly and peacefully with the knowledge of the defendant.
The plaintiff is entitled to the prayers sought. Consequently I enter judgment for the plaintiff as prayed.
No order as to costs.
Delivered, dated and signed at Kakamega this 31ST day of July, 2012
B. THURANIRA JADEN
J U D G E