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ELCDismissedLand Case No. 16 of 2012 (OS)· [2015] KEELC 204 (KLR)

Barnabas Mungo Longit v Stanley Tanui [2015] KEELC 204 (KLR)

Environment and Land Court
17 September 2015
EOE. Obaga
2,884 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kitale Environment and Land Court dismissed a 43-year-old land ownership claim, ruling that undocumented purchases and disputed occupation cannot create title through adverse possession.

What this practically means

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Executive summary

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The plaintiff, Barnabas Mungo Longit, brought an Originating Summons against the defendant, Stanley Tanui, seeking an order that he had acquired LR No. Cherangany/Kapkanyor/55 by adverse possession. The plaintiff claimed he bought 30 acres of the land from his step father Kibiwott Kimutul on 13.3.1972, took possession through his father and brother in 1975, and remained in occupation until the defendant's family interfered in 1996. The defendant, registered owner by transmission from his father Kiptanui Arap Kimaget, denied the sale, contending that his father had bought the land, that the plaintiff had never been on it, and that the plaintiff had merely encroached on about two acres following a boundary dispute. The court framed three issues: whether the plaintiff purchased the land in 1972, whether he was in possession and for how long, and whether his occupation was peaceful. The court found the alleged sale agreement unsigned, uncommissioned and failing section 3 of the Law of Contract Act, and held that no sale took place. It further found the claimed caution of 1976 to be a fabrication. On possession, the court found the plaintiff encroached only around 1996, occupying about two acres, and that his occupation was contested and not peaceful, failing the requirement of open, peaceful and continuous occupation for 12 years. The suit was dismissed with costs, and on the defendant's counter-claim the court ordered the plaintiff's eviction from the two acres he occupied.

Key legal issues

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01

Existence of the 1972 sale agreement

Holding

No valid sale agreement existed; the agreement produced was unsigned, uncommissioned and did not refer to any particular plot, breaching section 3 of the Law of Contract Act

Reasoning

The agreement of 13.3.1972 did not refer to any plot, was unsigned and did not indicate when possession was to take effect. The plaintiff's explanation of illiteracy was rejected since thumb prints should have been used. Section 3 of the Law of Contract Act requires a contract for the disposition of land to be in writing and signed by all parties with attested signatures. The court found no sale agreement existed.

p. 3
02

Whether the plaintiff was in adverse possession

Holding

The plaintiff was not in possession since 1975; he encroached on the suit land around 1996 and his occupation was not peaceful

Reasoning

The court found the plaintiff's claim of possession from 1975 to be false; the surveyor showed he encroached by about two acres, and his own witnesses conceded a long standing boundary dispute. Occupation was disrupted by disputes reported to the police and provincial administration. A claimant must prove open, peaceful and continuous occupation for 12 years, which the plaintiff failed to demonstrate.

p. 4

Legal principles established

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  • To succeed in adverse possession, the claimant must be in open, peaceful and continuous occupation of the land for 12 years to the knowledge of the registered owner or having dispossessed the true owner
  • A contract for the disposition of an interest in land must be in writing, signed by all parties and the signatures attested by a witness under section 3 of the Law of Contract Act

Court orders

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  1. 1.Suit dismissed with costs to the defendant
  2. 2.Plaintiff to be evicted from the two acres of the suit land which he is occupying
  3. 3.Plaintiff to pay costs of the suit and of the counter-claim to the defendant

Authorities

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Legislation

  • Limitation of Actions ActCap 22
  • Civil Procedure ActCap 21
  • Law of Contract ActSection 3
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit land, under the Limitation of Actions Act and Civil Procedure 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, "Barnabas Mungo Longit v Stanley Tanui [2015] KEELC 204 (KLR)", Case Analysis (2015). Land Case No. 16 of 2012 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/204/eng@2015-09-17

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