David Muturi Migwi v Sally Jemeli Korir & another [2018] KECA 561 (KLR)

Court of Appeal

17 May 2018

EGE. M. Githinji HOHannah Okwengu JMJ. Mohammed

2,074 words in judgment

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The bottom line

Kenya's Court of Appeal ruled you cannot claim land by adverse possession against Settlement Fund Trustees' unregistered land because no registered title exists to extinguish.

What this practically means

Executive summary

The appellant claimed four acres of Uasin Gishu Illula Settlement Scheme parcel by adverse possession, relying on a 1986 sale agreement with the deceased allottee, Yusuf Korir Chepkeitany. The Environment and Land Court (Munyao, J.) dismissed the suit because the originating summons was not supported by a comprehensive affidavit annexing a certified extract of title. On appeal, the Court of Appeal (Githinji, Okwengu and Mohammed, JJ.A.) agreed with the appellant that the defective affidavit and the failure to annex an extract of title were curable procedural irregularities, given that the suit was heard by viva voce evidence. However, the appeal failed on a more fundamental ground: the deceased vendor had never been registered as proprietor of the land. The land remained Government land under the Settlement Fund Trustees, with an outstanding loan, and under section 41 of the Limitation of Actions Act Government land cannot be acquired by adverse possession. Section 38 requires the land claimed to be registered under the Acts specified in section 37, and since no title existed that section 17 could extinguish, the adverse possession claim was premature and incompetent, in line with Francis Gitonga Macharia v Muiruri Waithaka. The court declined to determine the merits of the claim. The appeal was dismissed with costs to the respondents. This judgment binds lower courts to the proposition that adverse possession does not run against unregistered allotment interests in settlement scheme land vested in the Settlement Fund Trustees.

Key legal issues

Maintainability of an adverse possession claim against unregistered land held by the Settlement Fund Trustees

Holding

The claim was not maintainable because the deceased allottee never became registered proprietor; a contingent interest could not be extinguished by limitation.

Reasoning

Section 38 of the Limitation of Actions Act requires that the land claimed be registered under the Acts specified in section 37, and the order sought is registration in place of the person currently registered. Settlement scheme land remains Government land with the Government as first proprietor upon completion of purchase. Since the deceased's acquisition process was never completed, no title existed that section 17 could extinguish, rendering a limitation-based claim premature and incompetent, consistent with Francis Gitonga Macharia v Muiruri Waithaka.

p. 3

Effect of failure to annex a certified extract of title and of a defective supporting affidavit

Holding

These were procedural irregularities curable at any stage and not fatal where viva voce evidence was taken, but the appeal failed on the substantive ground of no registered title.

Reasoning

Order 37 rule 7(2) of the Civil Procedure Rules requires an originating summons under section 38 to be supported by an affidavit annexing a certified extract of title. The court agreed with the appellant that these omissions were procedural irregularities capable of cure, particularly as the suit was heard by viva voce evidence. However, the defect went beyond formality: no registered title to the land existed at all, and Government land cannot be acquired by adverse possession under section 41.

p. 3

Legal principles established

A claim for adverse possession is premature and incompetent where the person against whom the claim is brought is not registered as proprietor under the registered land statutes specified in section 37 of the Limitation of Actions Act, as there is no title capable of being extinguished under section 17.
Government land under the jurisdiction of the Settlement Fund Trustees cannot be acquired by adverse possession by virtue of section 41 of the Limitation of Actions Act.
Failure to annex a certified extract of title to the affidavit supporting an originating summons under section 38 of the Limitation of Actions Act is a curable procedural irregularity, and even a deficient supporting affidavit is not fatal where oral evidence is tendered at trial.

Court orders

1.Appeal dismissed with costs to the respondents

Authorities

Legislation

Limitation of Actions Actsection 7
Limitation of Actions Actsection 17
Limitation of Actions Actsection 13(1)
Limitation of Actions Actsection 38(1)
Limitation of Actions Actsection 37
Limitation of Actions Actsection 41
Civil Procedure RulesOrder XXXVI Rule 7 (now Order 37 rule 7(2))
Constitution of KenyaArticle 159(2)(d)
Government Lands Actreferred to in section 37 (repealed)
Registration of Titles Actreferred to in section 37 (repealed)
Land Titles Actreferred to in section 37 (repealed)
Registered Land Actreferred to in section 37 (repealed)
Land Registration Act

Cases cited (2)

Jane Jeptoo Sawe v Estate of Sylvester Kimagut Sang
Eldoret Civil Appeal No. 105 of 2015
Francis Gitonga Macharia v Muiruri Waithaka
[1998] eKLR

On appeal from: Environment & Land Court at Eldoret; ELC No. 232 of 2012 (formerly Eldoret HCCC No. 14 of 2006 (OS))
Jurisdiction invoked: First appellate appeal from the Environment and Land Court (no specific constitutional or statutory jurisdictional provision stated in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "David Muturi Migwi v Sally Jemeli Korir & another [2018] KECA 561 (KLR)", Case Analysis (2018). Civil Appeal No. 47 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/561/eng@2018-05-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.