Jaber Mohsen Ali & another v Priscillah Boit & another [2014] KEELC 283 (KLR)
The bottom line
#An Eldoret court ruled that land buyers without Land Control Board consent cannot claim ownership, even after decades of living on the land.
What this practically means
#Executive summary
#Key legal issues
#Authenticity of the alleged 1972 sale agreement
The document produced as defence exhibit No. 6 was not authentic due to material discrepancies between the exhibit, the defendants' bundle and the SFT file copy
The exhibit had 4 attesting witnesses against 5 in the bundle, differing signatures of Paul Boit and mispositioned thumbprint of Aziza Chepkemboi. The defence witness contradicted himself, at one point saying Paul Boit came with the agreement already typed, and elsewhere that Boit was absent when it was signed. These unexplained discrepancies put authenticity in serious doubt.
Enforceability of a sale of agricultural land without Land Control Board consent
Even if the 1972 agreement existed, it is null and void under Section 6 of the Land Control Act for want of consent of the Land Control Board
The suit land is agricultural land within a land control area. No Land Control Board consent was obtained within six months, and no SFT consent was obtained for the transfer of the loan. The transaction is therefore void for all purposes and cannot confer proprietary rights on the defendants.
Adverse possession against land registered under the Settlement Fund Trustees
Adverse possession is not maintainable because time did not run while the land was under the SFT, which was immune from limitation by Section 41 of the Limitation of Actions Act and Section 175 of the Agriculture Act
The SFT was first registered proprietor from 19 May 1979 until 5 June 2003. Time for adverse possession only began running on 5 June 2003 when the SFT was divested. The counterclaim was filed on 30 March 2007, less than four years later, far short of the 12 years required. The defendants' long occupation therefore counted for nothing.
Whether the plaintiffs' suit was time barred
The plaintiffs' suit was filed within time because the cause of action accrued only from 5 June 2003
Under Sections 7 and 13 of the Limitation of Actions Act, time runs only when the land is in the possession of a person in whose favour limitation can run. Since time could not run in the defendants' favour while the land was under the SFT, the plaintiffs' cause of action did not accrue in 1972 but from 5 June 2003, and the suit filed on 24 February 2005 was well within 12 years.
Entitlement of registered proprietors to eviction and injunction
As registered owners, the plaintiffs are entitled to exclusive possession, eviction of the defendants and a permanent injunction
The court invoked the absolute ownership conferred by Sections 27 and 28 of the repealed Registered Land Act, echoed now in Sections 24 and 25 of the Land Registration Act. The defendants could not rely on overriding interests since their adverse possession claim failed. The defendants were given 30 days to vacate with the land left intact.
Legal principles established
#- A transaction on agricultural land for which Land Control Board consent is required but not obtained is null and void and unenforceable
- Time for adverse possession cannot run against the Settlement Fund Trustees while land is registered under the SFT, by virtue of Section 41 of the Limitation of Actions Act and Section 175 of the Agriculture Act
- Adverse possession requires occupation that is open, without force, without secrecy and without licence, plus animus possidendi
Court orders
#- 1.Declared that the defendants have failed to prove entitlement to the suit land either by way of purchase or by way of adverse possession
- 2.Declared the plaintiffs to be the owners of the land parcel Uasin Gishu/Sosiani/28
- 3.Ordered the defendants to vacate the suit land forthwith and no later than 30 days from the date of judgment; in default the plaintiffs be at liberty to apply for eviction at the defendants' cost
- 4.Issued a permanent injunction barring the defendants from the suit land
- 5.Ordered the defendants to bear the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over a dispute concerning title to and possession of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jaber Mohsen Ali & another v Priscillah Boit & another [2014] KEELC 283 (KLR)", Case Analysis (2014). Uasin Gishu/Sosiani/28 suit (plaint filed 24 February 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/283/eng@2014-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.