Boit v Ali & another (Civil Appeal 50 of 2015) [2021] KECA 270 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed eviction from settlement land, ruling that adverse possession claims cannot run against land registered to the Settlement Fund Trustee.
What this practically means
#Executive summary
#Key legal issues
#Proof of the alleged sale agreement of 1972
The trial court properly found the sale not proved; the appellant bore the burden of proof and failed to produce the pleaded agreement
The appellant pleaded and relied on an agreement dated 11th August 1972, which was never produced despite adjournments. The document produced was dated 30th August 1972 and differed materially from the copy in the SFT file. The trial court, which saw and heard the witnesses, found the defence evidence contradictory and unreliable, and the onus of proving the case lay on the appellant.
Adverse possession over land registered in the name of the Settlement Fund Trustee
Adverse possession could not run against the SFT by dint of section 41(a)(i) of the Limitation of Actions Act and section 175 of the Agriculture Act
The suit property was registered in the SFT's name from 19th May 1979 to 5th June 2003. Statute expressly excluded such land from adverse possession claims, and this Court had so held in Gitu v. Ndungu. Consequently, the issue of lack of Land Control Board consent became moot and unnecessary to determine.
Failure to file submissions within the time directed
A party who is twice indulged and yet fails to file submissions cannot blame the court of technicalities
The hearing concluded on 27th February 2014 with directions to file submissions; only the respondents complied. The appellant sought and obtained one extension, yet still filed nothing until the judgment date. The court's obligation to administer justice without undue delay justified proceeding with judgment.
Proceeding with the trial after the death of the 2nd defendant
Order 24 Rule 2 was satisfied and, in any event, the parties sued and counterclaimed as administrators of the estate of Paul Boit
The death of the appellant's mother was recorded, and there is no prescribed format for such recording. More decisively, the parties were acting as administrators of the estate, so section 81 of the Law of Succession Act vested all powers in the surviving administrator. The ground was an afterthought.
Legal principles established
#- An appellate court will not readily interfere with the trial court's findings on the credibility of witnesses
- Land registered in the name of the Settlement Fund Trustee is not subject to claims of adverse possession under the Limitation of Actions Act
- Upon the death of one of joint administrators, all powers and duties vest in the surviving administrator under section 81 of the Law of Succession Act
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- Environment and Land Court at Eldoret
- Not stated in the judgment
- Jurisdiction invoked
- Not stated in the judgment (first appeal from the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boit v Ali & another (Civil Appeal 50 of 2015) [2021] KECA 270 (KLR)", Case Analysis (2021). Civil Appeal No 50 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/270/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.