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ELCAllowedOriginating Summons dated 24th January 2013· [2014] KEELC 539 (KLR)

William Koipitat Mayon v Samreu Oepaki Kuku & another [2014] KEELC 539 (KLR)

High Court of Kenya
9 May 2014
MGMary M. Gitumbi
1,285 words in judgment
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The bottom line

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The High Court confirmed that someone who openly occupies land in Kenya for over 12 years becomes its owner, even if the title changes hands.

What this practically means

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Executive summary

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The plaintiff, William Koipitat Mayon, filed an Originating Summons under Order 37 Rule 7(1) of the Civil Procedure Rules and sections 7, 37 and 38 of the Limitation of Actions Act seeking declarations that he is the proprietor of plot KAJIADO/KAPUTIEI-NORTH/3910 and entitled to be registered as its owner by adverse possession, with an order directing the Land Registrar Kajiado to register him, plus costs. He pleaded that his late mother, the registered owner of the parent parcel KAJIADO/KAPUTIEI-NORTH/663, acquired from a group ranch, was subdivided to yield the suit property; that he had resided, grazed livestock and buried his mother on the suit property openly, peacefully and without interruption for over 15 years, and that the property was transferred by the 1st respondent to the 2nd respondent in 2007 without disturbing his occupation. The defendants were served by substituted service and did not enter appearance or respond, so interlocutory judgment was entered and the matter proceeded to formal proof before Gitumbi J. The plaintiff testified as the sole witness and produced the green card. The court found his occupation exclusive, continuous and adverse for over 12 years, and that transfer of title did not interrupt limitation, following Githu v Ndeete. Judgment was entered as prayed with costs to the plaintiff.

Key legal issues

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01

Whether the plaintiff acquired the suit property by adverse possession

Holding

Yes; the plaintiff proved continuous, open and exclusive occupation exceeding 12 years, entitling him to be registered as proprietor.

Reasoning

The court held that a claimant need only show exclusive occupation lived on continuously without interruption for over 12 years. The plaintiff occupied the suit property with his family and siblings for over 15 years, buried his mother there in 2002, and grazed livestock openly, with no claim ever made by the registered owners. Transfer of the property in 2007 did not interrupt limitation. The property is registered under the repealed Registered Land Act, listed under section 37 of the Limitation of Actions Act, so the claim was competent under section 38.

p. 2

Legal principles established

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  • A mere change of ownership of land occupied by a person in adverse possession does not interrupt that person's adverse possession.
  • Rights being acquired under section 7 of the Limitation of Actions Act are overriding interests binding on a new registered purchaser.

Court orders

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  1. 1.A declaration that the plaintiff is the proprietor of 20.23 Hectares of land being plot KAJIADO/KAPUTIEI-NORTH/3910
  2. 2.A declaration that the plaintiff is entitled to be registered as the owner of the suit property
  3. 3.A declaration that the suit property belongs to the plaintiff by way of adverse possession and an order to the Land Registrar Kajiado to register the plaintiff as the owner of the suit property
  4. 4.Costs of the Originating Summons awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7(1)
  • Civil Procedure Actsections 3 and 3A
  • Limitation of Actions Actsections 7, 37 and 38
  • Registered Land Act (repealed)section 30(f)

Cases cited (1)

  • Githu vs Ndeete
    (1984) KLR
Jurisdiction invoked
Order 37 Rule 7(1) of the Civil Procedure Rules; sections 3 and 3A of the Civil Procedure Act; sections 7, 37 and 38 of the Limitation of Actions Act

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, "William Koipitat Mayon v Samreu Oepaki Kuku & another [2014] KEELC 539 (KLR)", Case Analysis (2014). Originating Summons dated 24th January 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/539/eng@2014-05-09

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