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ELCDismissedLand Case No. 58 of 2012 (OS)· [2016] KEELC 255 (KLR)

Joseph K M M Simiyu v Michael Kibiwot Seroney [2016] KEELC 255 (KLR)

Environment and Land Court
3 November 2016
EOE. Obaga
916 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff brought an originating summons against the defendant, the registered owner of LR. No. Kitale Municipality Block 15/Koitogos/5 (since subdivided), seeking an order that he had acquired two acres of that property by way of adverse possession. The plaintiff testified that he bought the two acres from Hudson Wanyonyi Kisembe and had continuously occupied the land since January 1997, where he had dug a borehole, planted avocado trees and grown maize. The defendant denied that Kisembe had any land to sell, saying he had only allowed the plaintiff to occupy one of his houses and had offered to sell him a quarter of an acre. The court identified the sole issue as whether the plaintiff had acquired the suitland by adverse possession, the applicable law being that a claimant must have been in peaceful and continuous occupation for more than twelve years. Kisembe had earlier sued the defendant over a failed purchase; the matter was settled with the defendant agreeing to refund Kshs.1,000,000/=. The plaintiff did not produce his agreement with Kisembe, but the defendant did, and it showed the purchase took place on 23/12/2002. The plaintiff, who had been warned by the defendant's advocates in August 2003 that Kisembe held no title, had therefore occupied for only slightly over 9 years when the suit was filed on 9/4/2012. The assistant chief's letter asserting a 1997 purchase date was contradicted by the agreement. The court found the plaintiff had failed to prove his claim and dismissed the suit with costs to the defendant.

Key legal issues

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01

Whether the plaintiff had acquired the suitland by adverse possession

Holding

The claim failed because the plaintiff had not occupied the land for the requisite period of more than twelve years; occupation ran only from 23/12/2002 when he purchased from Kisembe, giving slightly over 9 years by the time of filing

Reasoning

The court found the plaintiff was occupying the suitland, but the decisive point was the date possession commenced. The plaintiff claimed to have occupied since January 1997, but the agreement produced by the defendant showed he bought the suitland from Kisembe on 23/12/2002. The plaintiff did not deny that agreement, and it contradicted the letter from the assistant chief dated 12/3/2012. A simple calculation showed that the 12-year period had not elapsed by the time the suit was filed on 9/4/2012. The court also noted the plaintiff had been warned by the defendant's advocates as early as 7/8/2003 that Kisembe was not the owner and could not pass good title.

p. 2

Legal principles established

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  • A claim for adverse possession requires peaceful and continuous occupation of the land for a period of more than twelve years

Court orders

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  1. 1.The plaintiff's claim for adverse possession is dismissed
  2. 2.Costs of the suit awarded to the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the title of the suit (Land Case No. 58 of 2012 (OS)); no specific constitutional/statutory provision invoked in the judgment

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, "Joseph K M M Simiyu v Michael Kibiwot Seroney [2016] KEELC 255 (KLR)", Case Analysis (2016). Land Case No. 58 of 2012 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/255/eng@2016-11-03

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