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ELCDismissedOriginating Summons ( adverse possession )· [2016] KEELC 1187 (KLR)

Kiprono Arap Soi v Peter Murmumet Tompoi & another [2016] KEELC 1187 (KLR)

Environment & Land Court
21 January 2016
MSMunyao Sila
1,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an adverse possession claim because the claimant filed the wrong documents and couldn't prove 12 uninterrupted years of occupation.

What this practically means

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Executive summary

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The plaintiff moved the Environment and Land Court at Nakuru by Originating Summons seeking to be declared owner of parcel Transmara/Kimintet (B)/842 by adverse possession, asserting that his parents settled on the land in the 1930s, that he was born and raised there, and that he had occupied it for over 70 years despite an adjudication process he claimed was unfairly conducted and which registered the title in the name of Leimin Ole Kamparo. The 1st respondent, Peter Murmuet Tompoi, opposed via replying affidavit, recounting a long history of litigation: the plaintiff's conviction for trespass in Kilgoris Criminal Case No. 634 of 2000; a Land Disputes Tribunal award in the respondent's favour adopted in Kilgoris Misc. Application No. 1 of 2009 with an eviction order signed on 14 May 2009; further trespass convictions in 2009; a dismissed judicial review in Nakuru High Court JR No. 18 of 2011; and a compensation suit in Bomet. The court held the Originating Summons fatally defective because the annexure 'KAS-4' was an adjudication area list, not a certified extract of title, contrary to the mandatory requirement of Order 37 Rule 7, and the identity of the registered proprietor and the land could not be established. In any event, the plaintiff's possession was not quiet, peaceful or continuous for 12 years, since he had been declared a trespasser and eviction orders were in force months before filing suit. The court dismissed the suit with costs to the defendants.

Key legal issues

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01

Compliance with Order 37 Rule 7 - certified extract of title

Holding

The plaintiff's annexure 'KAS-4' was an adjudication area list and not a certified extract of the register; the summons was fatally defective and the suit failed on that ground alone.

Reasoning

The court examined the annexed document and found it was an adjudication/area list allocating plots to individuals, lacking even the parcel number 42's description of the suit property. Without a certified extract, the court could not determine who is the registered proprietor or for how long, nor the identity of the land claimed, and thus could not entertain the claim.

p. 2
02

Elements of adverse possession - quiet, open, peaceful and continuous occupation for 12 years

Holding

The plaintiff's possession was not peaceful or continuous for 12 years; he was convicted of trespass in 2001 and eviction orders were signed on 14 May 2009, a few months before the suit was filed on 9 October 2012.

Reasoning

The documentary record showed a succession of proceedings against the plaintiff: criminal trespass convictions in 2001 and 2009, a Land Disputes Tribunal award adopted by the Kilgoris Magistrates Court with an eviction order, an assault conviction of his son, and a dismissed judicial review. Possession thus interrupted and disturbed could not found adverse possession.

p. 3

Legal principles established

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  • An Originating Summons for adverse possession must be supported by an affidavit to which a certified extract of the title to the land claimed is annexed; without it the suit is fatally defective.
  • To succeed in adverse possession a claimant must demonstrate quiet, open, peaceful and continuous occupation of the land for at least 12 years; occupation interrupted by trespass convictions and eviction orders cannot qualify.
  • A claimant's birth on the land or his parents' early settlement is irrelevant in an adverse possession claim.

Court orders

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  1. 1.The suit is dismissed
  2. 2.Costs of the suit are awarded to the defendants/respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions Actsection 38
Jurisdiction invoked
Claim for adverse possession under section 38 of the Limitation of Actions Act brought by Originating Summons under Order 37 Rule 7 of the 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 (3)

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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, "Kiprono Arap Soi v Peter Murmumet Tompoi & another [2016] KEELC 1187 (KLR)", Case Analysis (2016). Originating Summons ( adverse possession ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1187/eng@2016-01-21

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