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Court of AppealDismissedCivil Appeal 66 of 2017· [2022] KECA 478 (KLR)

Chepsiror v Chemonges

Court of Appeal
11 March 2022
2,044 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that a landowner's 12-year clock to sue starts on registration, so a 2008 land recovery claim was too late.

What this practically means

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Executive summary

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This Court of Appeal at Kisumu judgment (Tuiyott, Ngugi and Kiage, JJA) dismissed an appeal by Aaron Kibiwot Chepsiror against the Environment & Land Court at Kitale (Obaga, J), which had dismissed his trespass claim against his neighbour Florence Chemonges as statute-barred, while also dismissing her counterclaim for lack of proof. The appellant, registered owner of parcel 23, claimed the respondent unlawfully occupied 2.722 hectares of his land; she denied this, pleaded limitation, and counterclaimed for eviction. The sole issue on appeal was whether time could be prevented from running under the Limitation of Actions Act while title to parcel 23 was charged in favour of the Settlement Fund Trustees. The court, applying Selle v Associated Motor Boat Co, held that registration under section 27 of the repealed Registered Land Act vested absolute ownership in the appellant on 5th August 1987, when the respondent was already in possession of part of the parcel; time therefore ran from that date and the right to recover was extinguished on 4th August 1999, rendering the 2008 suit hopelessly out of time. The court criticised the appellant for shifting his case between trial and appeal, and noted the settled position that no adverse-possession claim lies against land held by the Settlement Fund Trustees. The appeal was dismissed with costs, affirming the decision below. All three judges concurred in separate short judgments.

Key legal issues

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01

Commencement of the limitation period under Section 7 of the Limitation of Actions Act for recovery of land

Holding

Time began to run on 5th August 1987 when the appellant was registered as absolute proprietor, as the respondent was already in possession of part of parcel 23; the right of action was extinguished on 4th August 1999.

Reasoning

Registration under section 27 of the repealed Registered Land Act vests absolute ownership in the registered person. If parcel 23 was previously public land, it ceased to be so upon the appellant's registration in 1987. The respondent was already in possession of part of the parcel, so the right to recover accrued then and was extinguished twelve years later, in 1999. The 2008 suit was therefore statute-barred and the trial court's dismissal could not be faulted.

p. 4
02

Whether Section 41 of the Limitation of Actions Act (excluding Government land) assists a claimant whose land was charged to the Settlement Fund Trustees

Holding

Section 41 does not assist the appellant; his claim was over parcel 23, his own registered land, and time ran from his registration regardless of the charge.

Reasoning

The court called out the appellant for shifting his case: at trial he pleaded the property passed to him in 2005, but on appeal he pegged his claim on when the Settlement Fund Trustees ceased owning the respondent's parcel 22. The true controversy was when the clock started for recovery of parcel 23. The certificate of search showed the appellant registered as absolute owner on 5th August 1987 with no encumbrance as of 2011, and he produced no evidence of when he paid off the loan.

p. 3

Legal principles established

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  • No claim for adverse possession can lie against land held by the Settlement Fund Trustees, a public corporation, by dint of Section 41 of the Limitation of Actions Act.
  • Where a registered owner's land is already in another's possession, limitation time runs against the registered owner from the date of registration vesting absolute ownership.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant to pay costs of the appeal

Authorities

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Legislation

  • Law of Limitation of Actions ActSection 7
  • Law of Limitation of Actions ActSection 41
  • Registered Land Act (repealed)Section 27
  • Agriculture Act (repealed)Section 167(1)

Cases cited (3)

  • Wilfred Kegonye Babu vs Henry Mose Onuko
    [2019] eKLR

    Cited by the appellant on when time runs under the Limitation of Actions Act

  • Kuria Kiarie & 2 Others vs Sammy Magera
    [2018] eKLR

    No claim lies under adverse possession against land held by the Settlement Fund Trustees

  • Selle & Another Vs Associated Motor Boat Co. Ltd & others
    (1968)EA 123

    Role of a first appellate court in reconsidering and evaluating evidence

On appeal from
Environment & Land Court at Kitale
Environment & Land Case No. 14 of 2008
Jurisdiction invoked
First appeal under the Court's appellate jurisdiction over the Environment & Land Court decision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chepsiror v Chemonges", Case Analysis (2022). Civil Appeal 66 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/478/eng@2022-03-11

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