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ELCDismissedE&L 378 of 2012 (Formerly HCC 147 of 2007)· [2014] KEELC 410 (KLR)

Kimoi Ruto & another v Samwel Kipkosgei Keitany & another [2014] KEELC 410 (KLR)

Environment and Land Court of Kenya at Eldoret
23 April 2014
MSMunyao Sila
7,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret dismissed a family's adverse possession claim, ruling that land held by a State Corporation like AFC cannot be acquired through adverse possession.

What this practically means

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Executive summary

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The applicants, widow and daughter of the late Ruto Chesire, brought an Originating Summons under Sections 37 and 38 of the Limitation of Actions Act seeking to be registered as joint proprietors of land parcel Cherangany/Korongo/1 by adverse possession. The land had been charged to the Agriculture Finance Corporation (AFC) by the deceased's son under a power of attorney; AFC foreclosed in 1985 and was registered as proprietor on 21 November 1990, transferring the land to the 1st respondent in 2007 for Kshs 287,000/-. The applicants claimed 12 years had elapsed since AFC's registration, extinguishing its title. The respondents countered that the applicants' occupation was permissive, began in earnest only in 1998, and that a State Corporation's land is immune from adverse possession under Section 41 of the Limitation of Actions Act. The court held that occupation before 1990 was by licence as family members of the registered owner and lacked animus possidendi; even after 1990 the applicants tried to redeem the land, showing no adverse intention. On the State Corporation question, the court held that although State Corporations are not strictly 'Government', land held by them is land 'otherwise enjoyed by the Government' within Section 41(a)(i), so the 1990-2007 period could not count. Time began running only on 7 July 2007. The suit was dismissed with costs and the 1st respondent's counterclaim for eviction allowed; the applicants were ordered to vacate within 30 days.

Key legal issues

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01

Whether adverse possession can run against a State Corporation

Holding

No; land held by a State Corporation is land otherwise enjoyed by the Government under Section 41(a)(i) of the Limitation of Actions Act

Reasoning

State Corporations are vehicles through which Government performs its operations; their land is for the benefit of Government and the public, and on winding up reverts to Government. Although corporations are separate legal entities and not strictly 'Government', the land they hold falls within the Section 41 exception, so time held by AFC (1990-2007) could not count.

p. 9
02

Whether occupation before AFC's registration in 1990 counted

Holding

No; such occupation was permissive, by licence as family members of the registered owner Ruto Chesire

Reasoning

The applicants occupied as wife and daughter of the registered owner, without intention to possess adversely. Per Jandu v Kirpal and Wambugu v Njuguna, possession does not become adverse while permission subsists. Even after 1990, the applicants tried to redeem the property in 2004 and 2007, showing lack of animus possidendi.

p. 6
03

Whether the counterclaim for eviction succeeds

Holding

Yes

Reasoning

Having failed in their adverse possession claim, the applicants had no basis to remain on the land. The 1st respondent, a purchaser for value with title from AFC, was entitled to the land to the exclusion of the applicants, who were ordered to vacate within 30 days.

p. 10

Legal principles established

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  • Land held by a State Corporation is land 'otherwise enjoyed by the Government' under Section 41(a)(i) of the Limitation of Actions Act and cannot sustain a claim for adverse possession
  • To sustain adverse possession an applicant must prove continuous, quiet and uninterrupted possession for at least 12 years with animus possidendi
  • Occupation under licence or family relationship cannot found a claim of adverse possession

Court orders

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  1. 1.The applicants' suit for adverse possession is dismissed with costs
  2. 2.The 1st respondent's counterclaim for eviction succeeds with costs
  3. 3.The applicants are to vacate the suit land within 30 days of the judgment, failing which the 1st respondent may move the court to execute for their eviction, with costs of the exercise borne by the applicants

Authorities

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Legislation

  • Civil Procedure ActSections 3 & 3A
  • Limitation of Actions Act, Cap 22Sections 2, 12, 13, 37, 38, 41, 42
  • Registered Land Act, Cap 300O. XXXVI Rule 3D (as cited in the O.S.)
  • Agriculture Finance Corporation Act, Cap 323Sections 3, 33(1) and (3)
  • Constitution of Kenya, 2010Articles 62, 260
  • State Corporations Act, Cap 446Section 2
  • Agriculture ActSections 167, 175
  • Land ActAct No. 6 of 2012
  • Companies Act, Cap 486null
  • Government Proceedings ActCap 40
  • Civil Procedure Rules (old)O. XXXVI Rule 3D

Cases cited (15)

  • Mbugua Njuguna v Elijah Mburu Wanyoike & Another
    (2002) LLR 5977
  • Kasuve v Mwaani Investments
    (2004) 1 KLR 184
  • James Mwangi v Mukinye Enterprises
    (1986) LLR 8021
  • Jandu v Kirpal & Another
    (1975) EA 225
  • Wambugu v Njuguna
    (1983) KLR 172
  • Kazungu Maleja Mbaru & Another v Thathini Company Ltd
    Mombasa Misc. Civil Application No. 503 of 2005
  • Walter Adede Damba v Churchill Omondi Damba & Another
    Kisii E&L No. 282 of 2009
  • JA Pye (Oxford) Ltd v Graham
    (2003) 1 AC 419
  • Clowes Developments (UK) Ltd v Walters
    (2005) EWHC 669 (Ch)
  • Hughes v Griffin
    (1969) 1 WLR 23
  • Githu v Ndeete
    (1984) KLR 776
  • Gitu v Ndungu & 2 Others
    (2001) KLR 149
  • Eliud Nyongesa Lusenaka & Another v Nathan Wekesa Omocha
    Kisumu Court of Appeal, Civil Appeal No. 134 of 1993 (1994) eKLR
  • Symon Gatutu Kimamo & 587 Others v East Africa Portland Cement Company Limited
    (2011) eKLR
  • Tsuma Lewa Deche & Another v Board of Trustees National Social Security Fund
    Mombasa HCCC No. 109 of 2008 (2009) eKLR
Jurisdiction invoked
Sections 37 and 38 of the Limitation of Actions Act, Cap 22; O.XXXVI Rule 3D of the old Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Kimoi Ruto & another v Samwel Kipkosgei Keitany & another [2014] KEELC 410 (KLR)", Case Analysis (2014). E&L 378 of 2012 (Formerly HCC 147 of 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/410/eng@2014-04-23

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