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ELCDismissedEldoret E&L Case No. 931 of 2012 (formerly Nairobi High Court Civil Suit No. 188 of 1991 (O.S) / Eldoret High Court Civil Suit No. 49 of 2008 (O.S))· [2014] KEELC 110 (KLR)

Wellington Lusweti Barasa & 75 others v Lands Limited & another [2014] KEELC 110 (KLR)

Environment and Land Court
30 October 2014
MSMunyao Sila
6,808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed 75 families' claim to a 2,098-acre farm, ruling that occupying land as permitted employees can never ripen into ownership.

What this practically means

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Executive summary

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Seventy-five plaintiffs filed an Originating Summons on 21 December 1990 (registered as Nairobi HC Civil Suit No. 188 of 1991 (O.S)) claiming title to LR No. 8319 (Benmoi Farm), a 2,098-acre parcel in Moiben, Uasin Gishu, by adverse possession, later adding a prayer that the transfer of the land to the 2nd defendant, Kibogy Properties Limited, be declared null and void. The land was first registered in favour of the Agriculture Settlement Trust in 1955, passed to Lands Limited (an ADC subsidiary) in 1967, was leased to John Kiplagat Kibogy in 1970 and sold to the 2nd defendant, registered on 29 September 1994. The plaintiffs' own evidence established that they and their predecessors entered and remained on the land as employees of successive owners or as children of employees, occupying with permission and at the owner's control. Munyao Sila J held that such occupation was by licence, not adverse possession, and that the plaintiffs' own 1988 caveat claiming a licencee interest defeated the claim; Hughes v Griffin, as applied in Delamere Estates Ltd v Ndung'u Njai, confirms that time does not run for a licencee. The court also found the plaintiffs failed to prove the extent or location of their occupation and held that the adverse possession and fraud prayers were irreconcilable. The 2nd defendant's title was found regular: the 1988 caveat had been extinguished by Mbito J's ruling of 9 July 1991 dismissing extension of the caveat. The suit was dismissed with costs on 30 October 2014.

Key legal issues

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01

Whether occupation as employees sustained a claim for adverse possession

Holding

No - the plaintiffs entered and remained on the land with the permission of successive owners by virtue of employment; such possession was by licence, not adverse

Reasoning

The plaintiffs' own evidence showed they entered as employees of Taylor, Owen, ADC/Lands Ltd and Kibogy, and their children remained through their parents' employment. Permission was granted to discourage theft of crops. Kibogy controlled their use of land and could reduce or re-allocate it. Possession with permission cannot be nec vi, nec clam, nec precario, and lacks animus possidendi. Their caveat expressly claimed a licencee interest, defeating the claim.

p. 8
02

Whether the plaintiffs proved their occupation on the ground

Holding

No - they never tendered evidence of what land they occupied or its acreage, and claimed the whole land while conceding the 2nd defendant utilizes most of it

Reasoning

The plaintiffs claimed the entire 2,098 acres yet admitted the 2nd defendant cultivates the greater part. No valuation or surveyor's report was produced. There was no evidence of boundaries or markings showing where the claimants lived. Even on the law of adverse possession alone, the claim would fail for failure to demonstrate what exactly they occupy.

p. 8
03

Whether the 2nd defendant's title was fraudulent

Holding

No - the sale was approved by the Land Control Board, consent issued, and the caveat had been extinguished by the ruling of 9 July 1991 before registration in 1994

Reasoning

The title showed a proper chain: lease to Kibogy in 1970, sale in 1978, registration in 1994. Mbito J had dismissed the application for injunction and extension of caveat on 9 July 1991, and that ruling was registered, extinguishing the caveat. Any question of missing signatures was explained by the Lands Registrar (DW-2). The prayer for nullification was also irreconcilable with the adverse possession claim.

p. 9
04

Whether time could run against Lands Limited as a state corporation subsidiary

Holding

The court declined to make a holding, the licence point being dispositive

Reasoning

Counsel argued both ways - the defendants contending time could not run against ADC/Lands Ltd as a state corporation, the plaintiffs contending Lands Ltd was a limited liability company not listed under Section 2 of the Limitation of Actions Act. The court held it unnecessary to decide since the licencee finding already defeated the claim.

p. 9

Legal principles established

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  • A person who occupies land as a licencee cannot claim it by adverse possession; time does not run in favour of a licencee or tenant at will
  • Occupation under a licence granted by virtue of an employer-employee relationship is with permission and therefore not adverse to the owner's title
  • A claimant for adverse possession bears the onus of proving actual occupation and its extent
  • A party cannot plead adverse possession and simultaneously seek cancellation of the same title by way of fraud, as the two prayers are irreconcilable

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.The plaintiffs shall pay the costs of the suit

Authorities

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Legislation

  • Civil Procedure Rules (former)Order XXXVI Rule 3D
  • Limitation of Actions ActSection 2

Cases cited (16)

  • Joseph Mutafari Situma v Nicholas Makhanu Cherongo
  • Joel Kalei Mutiso v Bonface Muthiani Mutiso
  • Samuel Katana Nzunga & 102 Others vs Salim Abdalla Bakshwein & Another
    Malindi HCCC No. 40 of 2008 (2013) eKLR
  • Michael Githinji Kimotho vs Nicholas Muratha Kimotho
    Nairobi Civil Appeal No. 53 of 1995 (unreported)
  • Kimoi Ruto & Another v Samwel Kipkosgei Keitany & Another
    Eldoret ELC No. 378 of 2012 (unreported)
  • Eric Chepkwony Aengwo v Jonathan Rutto Kibiesang
    Eldoret ELC No. 743 of 2012 (unreported)
  • Harrison Okumu Amaliani v Jackson Omoto
    Busia HCCC No. 42 of 2002 (O.S) (2013) eKLR
  • Githu v Ndeete
    (1984) KLR 776
  • Tsuma Lewa Deche
  • Clyde Baya Kijana vs Board of Trustees National Social Security Fund
    Mombasa Civil Suit No. 109 of 2008
  • Symon Gatutu Kimamo & 587 Others vs East Africa Portland Cement Co. Ltd
  • Mount Carmel Investments Limited vs Peter Thurlow Ltd
  • William Koipat Mayon v Samren Oepaki Kuku & Another
  • J.A Pye (Oxford) Ltd vs Graham & Another
  • Hughes v Griffin
    (1969) All ER 460
  • Delamere Estates Limited vs Ndung'u Njai & 42 Others
    Nakuru HCCC No. 184 of 2003 (2006) eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act claim for adverse possession, transferred to the Environment and Land Court under Article 162(2) (land and environment jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wellington Lusweti Barasa & 75 others v Lands Limited & another [2014] KEELC 110 (KLR)", Case Analysis (2014). Eldoret E&L Case No. 931 of 2012 (formerly Nairobi High Court Civil Suit No. 188 of 1991 (O.S) / Eldoret High Court Civil Suit No. 49 of 2008 (O.S)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/110/eng@2014-10-30

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