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ELCAllowedLand Case No. 132 of 2014 (O.S.)· [2016] KEELC 1031 (KLR)

Simon Pkite Chemeltor v William Loishakou [2016] KEELC 1031 (KLR)

Environment and Land Court at Kitale
30 March 2016
EOE. Obaga
1,283 words in judgment
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The bottom line

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A buyer who occupied land for over 22 years won ownership in Kenya by adverse possession, even though the sale was incomplete on paper.

What this practically means

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Executive summary

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The plaintiff sued under section 38 of the Limitation of Actions Act claiming that he had acquired six acres out of the defendant's parcel West Pokot/Siyoi/518 by adverse possession. The parties agreed that the defendant sold the plaintiff six acres in 1980 for Shs 10,200 and that the plaintiff was put in possession, where he reared animals and planted trees. The plaintiff had remained in peaceful occupation for over 22 years when the defendant in 2002 filed Kitale HCCC No. 9 of 2002 seeking to compel him to accept a refund and vacate. That suit was decided ex-parte but the judgment was set aside; a preliminary objection later found the suit statute-barred, and the plaintiff's counter-claim was dismissed for want of prosecution. The court framed a single issue: whether the plaintiff had acquired the six acres by adverse possession, and further rejected the defendant's plea of res judicata founded on the 2002 proceedings and a Kapenguria magistrates' court case, since neither was decided on the merits and both ex-parte judgments were set aside. Applying the principle that time runs from the date the claimant is put in possession and ceases only on the owner's assertion of right, the court held that the defendant's claim had been extinguished before the 2002 suit. Judgment was entered for the plaintiff: the defendant was ordered to transfer the six acres, the Deputy Registrar was authorised to execute the transfer if he defaulted, and the plaintiff was awarded costs.

Key legal issues

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01

Whether the plaintiff acquired the six acres by adverse possession

Holding

Yes; the plaintiff was in peaceful, continuous and uninterrupted possession for over 22 years from 1980, extinguishing the defendant's title.

Reasoning

The purchase was completed on 19/3/1980 when the plaintiff was put in possession. He remained in peaceful possession until 2002, over 22 years, far exceeding the 12-year limitation period. The defendant never asserted his rights during that period; his only attempt to reclaim the land was the 2002 suit, by which time the defendant's claim had already been extinguished.

p. 2
02

Whether the suit is res judicata

Holding

No; the prior ex-parte judgments were both set aside and the counter-claim was dismissed for want of prosecution, so none of the prior matters was determined on the merits.

Reasoning

The defendant relied on Kapenguria PMCC No. 9 of 2002 and Kitale HCCC No. 9 of 2002 between the same parties. Both ex-parte judgments were set aside, and the plaintiff's counter-claim in the Kitale suit was dismissed for want of prosecution. None of these matters was decided on the merits, so the res judicata doctrine does not apply.

p. 3

Legal principles established

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  • The limitation period for adverse possession begins to run on the day the claimant is put in possession.
  • Time under the Limitation of Actions ceases to run when the owner asserts his right by legal proceedings, effective entry, or when the right is admitted by the adverse possessor.
  • Adverse possession requires open, peaceful and uninterrupted possession for 12 years.

Court orders

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  1. 1.Declared trust terminated and defendant ordered to transfer the six acres to the plaintiff
  2. 2.Deputy Registrar authorised to sign all transfer documents if the defendant fails to do so
  3. 3.Plaintiff awarded costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 38

Cases cited (2)

  • Mbugua Njuguna v Elijah Mburu Wanyoike & another
    Nairobi Civil Appeal No. 27 of 2002
  • Githu v Ndeete
Jurisdiction invoked
Section 38 of the Limitation of Actions Act, Chapter 22, Laws of Kenya

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, "Simon Pkite Chemeltor v William Loishakou [2016] KEELC 1031 (KLR)", Case Analysis (2016). Land Case No. 132 of 2014 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1031/eng@2016-03-30

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