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ELCPartially AllowedE&L No 268 of 2013 (OS)· [2013] KEELC 76 (KLR)

Alfred Kipsang Suswa v Kirongo Arap Ngetich [2013] KEELC 76 (KLR)

Environment and Land Court of Kenya
19 September 2013
MSMunyao Sila
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that someone who openly occupies another person's land for over 12 years without permission can claim ownership of that portion.

What this practically means

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Executive summary

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This was an Originating Summons under Order 37 Rule 7 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act, Cap 22, in which the plaintiff sought a declaration that he had acquired title to 4 acres out of the land parcel originally known as Nandi/Kaptel/51, now comprised in Nandi/Kaptel/1890, by adverse possession. The plaintiff deponed that the defendant was registered as proprietor of Nandi/Kaptel/51 on 11 October 1972, the same date the plaintiff commenced occupation, and that he had been in exclusive, open and uninterrupted occupation of the 4 acres since then without the defendant's permission, building a house, keeping cattle and growing food on the land. He contended that the defendant's title to the portion was extinguished in 1984 and that the 2009 sub-division of the parcel did not affect his claim. The defendant was served but filed no response; the matter proceeded by affidavit evidence and counsel's submissions. Relying on the certified copy of the register and the uncontroverted affidavit evidence, the court held that the plaintiff's occupation had been open, quiet and without the registered owner's permission for well over 12 years, extinguishing the defendant's title to the portion claimed. The court answered the first four questions in the affirmative, declared the plaintiff entitled to registration of 4 acres out of Nandi/Kaptel/1890, directed the Deputy Registrar to execute the necessary conveyance instruments, ordered the applicant to pay all requisite charges and conveyance fees, and made no order as to costs. The suit was uncontested and succeeded in full.

Key legal issues

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01

Whether the plaintiff acquired title to 4 acres of Nandi/Kaptel/1890 by adverse possession

Holding

Yes - the plaintiff, in open and uninterrupted occupation since 1972 without the owner's permission, acquired title after 12 years, extinguishing the defendant's title to that portion

Reasoning

The Originating Summons was brought under section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. The respondent was served but filed no response, leaving the plaintiff's affidavit evidence uncontroverted. The certified register showed the defendant was registered on 11 October 1972, the date occupation began, and the land was later sub-divided in 2009, which did not affect the claim. The court found the occupation open, exclusive and without permission for over 12 years.

p. 2
02

Whether the sub-division of Nandi/Kaptel/51 into Nandi/Kaptel/1890, 1891 and 1892 in 2009 defeated the adverse possession claim

Holding

No - the sub-division does not affect the plaintiff's rights to claim adverse possession to the portion occupied

Reasoning

The defendant sub-divided the original parcel in 2009 after the plaintiff's adverse possession had already accrued. The applicant claimed only the 4 acres falling within the new parcel Nandi/Kaptel/1890. The court accepted that the sub-division did not extinguish or defeat rights already acquired by adverse possession, and answered the questions framed in the affirmative.

p. 2

Legal principles established

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  • Land registered under the Registered Land Act falls within the regime under which a person can claim entitlement to registration by way of adverse possession under sections 37 and 38 of the Limitation of Actions Act
  • An adverse possession claim based on uncontroverted affidavit evidence, where the respondent files no response despite service, will succeed

Court orders

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  1. 1.Declaration that the applicant is entitled to registration of 4 acres out of the land parcel Nandi/Kaptel/1890 having acquired title by way of adverse possession
  2. 2.Direction that the Deputy Registrar execute all instruments necessary to convey four acres of the suit land to the applicant
  3. 3.The applicant to pay all requisite charges and conveyance fees
  4. 4.No order as to costs

Authorities

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Legislation

  • Limitation of Actions ActSection 38
  • Limitation of Actions ActSection 37
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Registered Land ActCap 300
  • Land Registration ActAct No. 3 of 2012
  • Government Lands Act
  • Registration of Titles Act
  • Land Titles Act
Jurisdiction invoked
Section 38 of the Limitation of Actions Act, Cap 22 and Order 37 Rule 7 of the Civil Procedure Rules, 2010

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, "Alfred Kipsang Suswa v Kirongo Arap Ngetich [2013] KEELC 76 (KLR)", Case Analysis (2013). E&L No 268 of 2013 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/76/eng@2013-09-19

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