James Obande Wasui v Jeremiah Ochwada Musumba

High Court, at Busia

July 31, 2002

Ringera J

Civil Case No 6 of 2000

Adverse possession - applicant claiming adverse possession - respondent not registered proprietor - whether adverse possession can be claimed against a person not currently registered as proprietor.

Adverse possession - applicant not purchaser - applicant having temporarily entered possession with the owner’s consent- applicant remaining in possession for 12 years- whether he could acquire title against owner by adverse possession.

Adverse possession- applicant in possession for 12 years - land subsequently subdivided - original title closed - new titles issued - whether rights under adverse possession extinguished by subsequent sale or transfer to third party.

Land Law - prescriptive rights over land - changes in proprietorship of land - whether prescriptive rights extinguished by changes in proprietorship thereof.

Land Law - overriding interests in land - Relief sought by way of Originating Summons -whether overriding interests a matter for adjudication in an Originating Summons.

The Applicant brought a suit by way of Originating Summons seeking a declaration that he was the absolute owner of the land occupied by the Respondent by virtue of adverse possession. The Respondent, though in actual possession, was not the registered proprietor. The Applicant had temporarily entered possession of the land with the consent of the registered owner and had remained in possession for more than 12 years. However, prior to the expiry of 12 years the owner closed the original title, had the land subdivided and new titles issued, one of which was to the Respondent and in respect of which the Applicant claimed adverse possession.

The Respondent opposed the Summons arguing that no claim in adverse possession lay against him as it was based on the original title which was not in his name and further that even if the Applicant had acquired any prescriptive rights to the land, the same were extinguished by the close of the original title, subsequent subdivision of the land, and transfer and registration in his favour. Alternatively, the Respondent argued that the Applicant’s claim was in essence one based on prescriptive rights in the nature of overriding interest in land which could not be a matter for adjudication in Originating Summons.

Held:

 1. An order for relief by way of adverse possession can only be made in favour of an applicant against a respondent if the said respondent is the currently registered proprietor of the land which the applicant seeks to have registered in his name.

2. The Applicant did not enter the land as the purchaser but on the owner’s blessing to occupy the land in question temporarily and accordingly, however long he stayed there, he could not acquire the title thereto by adverse possession.

3. If the Applicant had been in adverse possession of the land for 12 years prior to subdivision, the proprietors of new titles would not have been able to shake off his rights.

 4. Prescriptive rights are in the nature of overriding interests and they run with the land irrespective of changes in proprietorship thereof.

5. The Applicant’s claim that he may have an overriding interest over the Respondent’s land under the provisions of the Registered Land Act (cap 300) could not be a matter of adjudication in the Originating Summons, as the only relief sought and indeed the only relief which could be sought in an originating summons of this nature was the registration of the Applicant as proprietor of the suit land by virtue of adverse possession.

Originating Summons dismissed with costs.

Cases

No cases referred to.

Statutes

1. Limitation of Actions Act (cap 22) section 38(1)

2. Registered Land Act (cap 300)

3. Civil Procedure Rules (cap 21 Sub Leg) order I; order XXXVI rule 3D

 4. Civil Procedure Act (cap 21) section 6

Advocates

Mr Ashioya for the Applicant

Mr Onsongo for the Respondent