Richard Kiragu Mwaura & another v David Kiprotich Arap Too & another [2013] KEELC 50 (KLR)
The bottom line
#The Eldoret Environment and Land Court dismissed an adverse possession counterclaim because the defendant failed to produce a certified title extract and prove 12 years of peaceful occupation.
What this practically means
#Executive summary
#Key legal issues
#Whether an adverse possession counterclaim can succeed without production of the title extract
It cannot; failure to produce documentary evidence of the registered owner defeats the claim
The counterclaim was based solely on adverse possession and should have been supported by an affidavit with a certified extract of title as required by the former Order 36 rule 7. No extract was annexed to the pleadings or produced in evidence, making it impossible to identify the registered owner against whom time was to run. Even treating the omission as a procedural technicality, proof of the claim was impossible without that evidence.
Res judicata and validity of the tribunal proceedings
The 1978 High Court decree in favour of Wamburi subsists and binds; the tribunal's purported review of it is null and void
The 1st defendant had litigated the same claim of fraudulent acquisition in Eldoret HCCC No. 91 of 1978 and lost before Simpson J; the decree was never set aside despite the perjury conviction of Wamburi's witness. The Land Disputes Tribunal, and the magistrate's court adopting its award, being subordinate to the High Court, had no power to review or overturn that judgment. Those proceedings were declared null and void.
Whether 12 years of adverse possession were established
No; occupation began in 2004 on the ex-parte injunction orders, and possession was not peaceful
The court found the ex-parte order in Eldoret CMCC No. 371 of 2004 existed and that it was on its basis that the 1st defendant moved into possession in 2004, twelve years before which had not lapsed when the counterclaim was filed. Wamburi was in possession until his death in 1998, and the succession of litigation showed possession, if any, was not peaceful.
Legal principles established
#- A claim of adverse possession should ordinarily be instituted by originating summons under Order 37 (formerly Order 36) of the Civil Procedure Rules, supported by an affidavit with a certified extract of title annexed; a defendant raising adverse possession by counterclaim is not precluded from supporting it with such affidavit and extract
- Adverse possession requires occupation nec vi, nec clam, nec precario for at least 12 years, with quiet, uninterrupted possession and intention to possess and own
- Subordinate courts and Land Disputes Tribunals cannot review or sit on appeal against a decision of the High Court; any purported review and its adoption as a court order are null and void
- Facts previously litigated and determined by the High Court are res judicata and will not be revisited
Court orders
#- 1.The plaintiff's suit against the defendants is dismissed for want of prosecution
- 2.The 1st defendant's counterclaim is dismissed with costs
- 3.The proceedings in Lukuyani Land Disputes Tribunal Case No. 9 of 2005 and the Decree in Kakamega Chief Magistrate's Court Misc. Award No. 20 of 2006 are declared null and void
- 4.The judgment and/or decree be served upon the relevant land registry
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the counterclaim concerning land parcel Kakamega/Sergoit/44 (statutory basis not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kiragu Mwaura & another v David Kiprotich Arap Too & another [2013] KEELC 50 (KLR)", Case Analysis (2013). Not stated in judgment (Eldoret Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/50/eng@2013-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.