[2016] KEHC 3222 (KLR)
The court found that the applicant and his predecessor had occupied a clearly defined portion of the suit land for over 30 years, openly and without interruption. The occupation was adverse to the interests of the registered proprietor, and the applicant had not been asked to vacate during this period. The evidence...
Source-derived case information.
- Citation
- [2016] KEHC 3222 (KLR)
- Parties
- Applicant: Winstone Wabuke Malibisi; Respondent: Cleophas Wanyaa Werunga
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 16 of 2016
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Application for adverse possession allowed. Applicant to be registered as proprietor of 3 acres of NDIVISI/NDIVISI/276. Each party to bear own costs.
- Legal Topics
- Adverse Possession, Title Acquisition, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winstone Wabuke Malibisi
Applicant
Cleophas Wanyaa Werunga
Respondent
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether the applicant has acquired title to 3 acres of Land Parcel No. NDIVISI/NDIVISI/276 by adverse possession for a period exceeding 12 years.
- 2 Whether the applicant should be registered as the legal proprietor of the said portion of land.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant and his predecessor had occupied a clearly defined portion of the suit land for over 30 years, openly and without interruption. The occupation was adverse to the interests of the registered proprietor, and the applicant had not been asked to vacate during this period. The evidence established that the applicant had dispossessed the registered owner of the portion he occupied, thereby satisfying the requirements for adverse possession. The court therefore held that the applicant had acquired title to the 3-acre portion by adverse possession and ordered that it be registered in his name.
Court Disposition
Application for adverse possession allowed. Applicant to be registered as proprietor of 3 acres of NDIVISI/NDIVISI/276. Each party to bear own costs.
Orders
- The applicant shall be registered as proprietor of the 3 acres he occupies in NDIVISI/NDIVISI/276 by adverse possession.
- The executive officer of the court shall execute the registration documents in favour of the applicant.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT AND LAND CASE NO. 16 OF 2016
WINSTONE WABUKE MALIBISI………………………………APPLICANT
AND
CLEOPHAS WANYAA WERUNGA………………………….RESPONDENT
JUDGEMENT
[1]. The Plaintiff filed this Originating Summons on 11/2/2016 and presented the following questions for determination by the Court
(1) Whether the said WINSTONE WABUKE MALIBISI has acquired the title to 3 acres of Land Parcel No. NDIVISI/NDIVISI/276 for having been in adverse possession of the said parcel of land for a period exceeding 12 years thereby acquiring proprietory interest in the said land and whether he should be registered as the legal proprietor thereof.
(2) Who should pay the costs of this application.
[2]. He supported the Originating Summons by an Affidavit of Support sworn on 11/2/2016. In that Affidavit he swore that his father Opicho Wabuke had occupied and worked 3 acres of land parcel Ndivisi/Ndivisi/276. That after his death he continued staying on the 3 acres of the said land which had been separated from the rest of the land by a stream. He argued that the occupation of his father and his was adverse to the interests of the registered proprietor. He attached a search certificate of the said land. He told the Court on oath that he has been on the suit land for a period of over 30 years. He averred that the defendant does not live on the land. Further that, it is only the respondents brothers who live on the land and that the portion they occupy is separated from his portion by a stream that passes through the said suit land.
[3]. The applicant called a witness George Isaac Wamamile who gave evidence that he had known the applicant as his neighbor. That his land was Ndivisi/Ndivisi/471. He averred that Ndivisi/Ndivisi/276 was occupied by the Applicant’s father one Winstone Wabuke Malibisi. He said that the one Wanyama C Werunga does not live on the land. His brothers use the land. And that the portion they use is separated by a stream. He said that the portion used by the respondent is 2½ acres.
[4]. The respondent who was served never gave any evidence. The applicant then closed his case. The issue for determination is whether the applicant has made out a case for adverse possession.
[5]. From the evidence adduced in Court, it is apparent that the applicant has been living on the suit land for a period of over 30 years. The portion that he has occupied is clearly defined. A stream separates the side he continues to use and the portion used by the brothers of the respondent. He has not been asked to move and vacate, out of the suit land by anyone over the period. He has clearly dispossessed the registered owner of the portion he occupies of three acres or thereabouts. I find that he has acquired the portion he occupies by adverse possession.
The said portion shall be registered on his name. The executive officer of this Court shall execute the registration documents in his favour. This suit was not defended so each party shall bear their own costs.
Judgment read in Court.
Dated, signed and delivered on 20th September, 2016.
S. MUKUNYA
JUDGE.
In presence of:
Joy/Gladys - Court Assistants
Plaintiff - Present
Defendant - Absent