Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Originating Summons dated 31/7/2013)· [2017] KEELC 1558 (KLR)

Jacob Kiprono Kiplagat v Mary Kobilo Barkwang & another [2017] KEELC 1558 (KLR)

Environment and Land Court
26 September 2017
MOM.A. Odeny
4,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Eldoret declared that a buyer who occupied farmland for over 12 years became its legal owner, overriding the sellers' family's registered title.

What this practically means

#

Executive summary

#
By an Originating Summons dated 31/7/2013 under Order 37 Rule 7 of the Civil Procedure Rules, 2010 and Section 38 of the Limitation of Actions Act, the plaintiff sought to be registered as proprietor of Land Parcel No. Uasin Gishu/Kuinet 'A' Settlement Scheme No. 88 by adverse possession. The plaintiff testified that he bought the land from the late James Barkwang Cheboiwo between 1999 and 2000, paying Kshs. 40,000/- per acre for the initial 5 acres and Kshs. 50,000/- per acre for the remaining 10 acres, paying in instalments evidenced by acknowledgement letters. He took possession in 1999, fenced the land, built structures, planted trees, dug a borehole, and paid land rates and the Settlement Fund Trustees loan. The defendants, the deceased's widow and son, contended that the plaintiff was a mere lessee, that the sale lacked spousal and family consent and Land Control Board consent, and that the 1st defendant held the land in trust for her children following a succession cause. The court framed three issues: whether the plaintiff purchased the land, whether he was in peaceful, uninterrupted and continuous occupation for over 12 years, and whether he was entitled to be registered as owner. The court found the purchase proved, possession continuous from 1999 (over 14 years), and held that Land Control Board consent is irrelevant to title claimed by operation of law through adverse possession. Judgment was entered for the plaintiff with a declaration of adverse possession, extinction of the defendants' title, an order for registration of the plaintiff, and costs against the defendants.

Key legal issues

#
01

Whether the plaintiff purchased the suit land from the late James Barkwang

Holding

The court found that the plaintiff bought the whole parcel, paid in full by instalments and took possession, as evidenced by the sale agreement, acknowledgement letters, receipts and the chief's baraza proceedings.

Reasoning

The plaintiff produced a sale agreement, extract of the green card, 13 acknowledgement letters, Settlement Fund Trustees loan payment receipts and land rates receipts. The chief's proceedings dated 4/4/13, signed by both parties, resolved the land had been sold to the plaintiff. The defendants' lease theory was implausible since a lessee would not fence and develop the land. The court found the purchase proved.

p. 6
02

Whether the plaintiff was in peaceful, uninterrupted and continuous occupation for more than 12 years

Holding

The court found uncontroverted evidence that the plaintiff had been in continuous, uninterrupted and exclusive possession from 1999 to filing of suit in 2013, exceeding the 12-year limitation period.

Reasoning

The defendants admitted the plaintiff's possession and offered no evidence of asserting their right by entry or legal proceedings. Time ceases to run when the owner asserts his right or when the adverse possessor admits the owner's right. The defendants transferred the land to themselves in the succession cause without regard to the plaintiff's proprietary interest; possession was with the defendants' knowledge.

p. 6
03

Whether the absence of Land Control Board consent defeats the adverse possession claim

Holding

No; where title is claimed by operation of law through adverse possession, Land Control Act consent requirements do not apply.

Reasoning

The court relied on Public Trustee v Wanduru, holding that Land Control Act provisions have no application where title to agricultural land is claimed by operation of law such as adverse possession. Having found the threshold for adverse possession met, the consent issue does not arise. The court also relied on the principle that possession of a purchaser who has paid the purchase price is possession in whose favour limitation can run.

p. 7

Legal principles established

#
  • Adverse possession is not defeated by failure to obtain Land Control Board consent; provisions of the Land Control Act have no application where title to agricultural land is claimed by operation of law such as adverse possession.
  • Adverse possession should be calculated from the date of payment of the purchase price to the full span of twelve years if the purchaser takes possession of the property.
  • Time ceases to run under the Limitation of Actions Act when the owner asserts his right by legal proceedings or effective entry, or when his right is admitted by the adverse possessor.

Court orders

#
  1. 1.A declaration that the plaintiff has obtained title over Land Parcel No. UASIN GISHU/KUINET 'A' SETTLEMENT /88 by adverse possession.
  2. 2.The defendants' title over the land parcel has been extinguished by lapse of time.
  3. 3.The Land Registrar in charge of the Uasin Gishu County to delete the name of the defendants, enter the name of the plaintiff, and issue the plaintiff with a title deed to the land parcel.
  4. 4.The costs of the suit to be borne by the defendants.

Authorities

#

Legislation

  • Limitation of Actions ActSection 38(1)
  • Civil Procedure Rules, 2010Order 37 Rule 7
  • Civil Procedure RulesOrder 2 Rule 4(1)
  • Land Registration ActSections 93(2) and (3)
  • Land Control ActCap 302 (generally)
  • Registered Land Act (now repealed)Section 30(g)

Cases cited (7)

  • Wambugu -vs- Njuguna
    [1983] KLR 173
  • Eliud Nyongesa Lusenaka & Another -vs- Nathan Wekesa Omocha
    Kisumu Court of Appeal No. 134 of 1993 (Public Trustee and ...)
  • EN.W vs PWM and others (Nairobi Environment and Land Case No. 240 of 2012)
  • Githu v. Ndeete
    [1984] KLR 776
  • Macharia Mwangi Maina & 87 Others – V – Davidson Mwangi Kagiri
    [2014] EKLR
  • Mwangi & Another - Vs – Mwangi
    [1986] KLR 328
  • Public Trustee – v- Wanduru
    (1984) KLR 314
Jurisdiction invoked
Order 37 Rule 7 of the Civil Procedure Rules, 2010; Section 38(1) of the Limitation of Actions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jacob Kiprono Kiplagat v Mary Kobilo Barkwang & another [2017] KEELC 1558 (KLR)", Case Analysis (2017). Not stated in the judgment (Originating Summons dated 31/7/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1558/eng@2017-09-26

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