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ELCAllowedOriginating Summons dated 23rd December 2015· [2017] KEELC 1146 (KLR)

Emmanuel Mwanga Chemengich & another v Julius Kipketer [2017] KEELC 1146 (KLR)

Environment and Land Court
16 October 2017
MOM.A. ODENY
1,421 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 gave land to buyers who openly occupied and developed it for 16 years, even though the seller never transferred the title.

What this practically means

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Executive summary

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By an Originating Summons dated 23rd December 2015, the plaintiffs Emanuel Mwanga Chemengich and Dorcas Cheptoo Sikowo sought to be registered as proprietors of Eldoret Municipality Block 14/934 through adverse possession and for the defendant Julius Kipketer's title to be declared extinguished. The defendant was served but filed no response. At the hearing on 29th September 2017, the 1st plaintiff testified that he bought the suit land through his brother-in-law, Rev. John Rotich, at Kshs. 620,000, paid in full, and took possession in April 2001, erecting a permanent stone wall, connecting utilities and constructing student hostels in use since 2003. The documents of the transaction were lost before transfer was effected and the defendant could not be traced. PW2 corroborated the purchase and payment. Counsel submitted that the plaintiffs had been in open, exclusive, continuous and uninterrupted occupation for over 16 years, relying on three adverse possession authorities. The court held that the uncontroverted evidence showed occupation since 2001 that was continuous and uninterrupted, and that 16 years surpassed the 12-year threshold. The plaintiffs proved entitlement to be registered as owners by adverse possession, the defendant's title was extinguished and his registration was to be cancelled. Judgment was entered for the plaintiffs in the terms sought, with costs of the originating summons to the plaintiffs. Judgment was delivered at Eldoret on 16th October 2017 by M.A. Odeny J.

Key legal issues

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01

Whether the plaintiffs acquired title to Eldoret Municipality Block 14/934 by adverse possession

Holding

Yes - the plaintiffs were in open, exclusive, continuous and uninterrupted occupation since 2001 (16 years), exceeding the 12-year threshold, so they are entitled to be registered as owners and the defendant's title is extinguished

Reasoning

The plaintiff's evidence was uncontroverted as the defendant was served but never filed a response. He bought the land in 2001, took immediate possession, constructed a permanent stone wall, connected utilities and built student hostels in use since 2003. His occupation was continuous, uninterrupted and unchallenged, and the extract of title showed registration in the defendant's name. Sixteen years' occupation surpassed the statutory twelve-year threshold for adverse possession.

p. 3

Legal principles established

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  • The test for adverse possession is open, exclusive, continuous and uninterrupted occupation for at least twelve years
  • Once adverse possession is established, the registered owner's title is extinguished and his registration should be cancelled

Court orders

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  1. 1.That the plaintiffs be registered as proprietors of Eldoret Municipality Block 14/934 having acquired ownership or title through adverse possession
  2. 2.That the title of the defendant known as parcel No. Eldoret Municipality Block 14/934 is declared extinguished
  3. 3.That land parcel No. Eldoret Municipality Block 14/934 be registered in the names of the plaintiffs EMANUEL MWANGA CHEMENGICH AND DORCAS CHEPTOO SIKOWO
  4. 4.Costs of the originating Summons to the plaintiffs

Authorities

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Legislation

  • Limitation of Actions Act (Cap 22)sections 37 and 38(1)

Cases cited (3)

  • JAMES GICHERU MBUGUA VS LANTEI OLE KAPONYI
    (2015) eKLR
  • MARION KAARI MBUI V ELISHA MBOGO NTHIGA
    (2016) eKLR
  • KASUVE VS INVESTMENT LTD & FOUR OTHERS
    2004 KLR 184
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act (Cap 22) in a claim for adverse possession

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, "Emmanuel Mwanga Chemengich & another v Julius Kipketer [2017] KEELC 1146 (KLR)", Case Analysis (2017). Originating Summons dated 23rd December 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1146/eng@2017-10-16

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