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ELCDismissedOriginating Summons dated 27th March 2007 (Nakuru)· [2017] KEELC 1953 (KLR)

Moses Chepkonga Cherono v Margaret Njoki Kinyanjui [2017] KEELC 1953 (KLR)

Environment and Land Court / High Court at Nakuru
31 July 2017
2,258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court threw out a man's bid to claim land by adverse possession because he lacked a certified title extract and had lived there with the owner's permission.

What this practically means

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Executive summary

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The plaintiff brought an Originating Summons dated 27th March 2007 under Order XXXVI Rules 3 and 5 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act, seeking a declaration that he was the lawful owner of land parcel number 107 Kampi ya Samaki by adverse possession. His case was that he agreed in December 1992 to buy the plot from the defendant for Kshs 21,500, paid Kshs 21,000, was given possession, the allotment letter and a transfer application form, and built a two-roomed stone house. The defendant replied that the plaintiff's deposit was refunded to his advocates in June 2000, that his occupation was with her consent, and that the suit was mounted to aid his defence in a criminal charge of forcible detainer (Nakuru CMCR No. 1559 of 2006). Only the plaintiff testified; the defendant closed her case without calling evidence. In cross-examination the plaintiff conceded he entered and remained on the plot with the defendant's permission and that the money paid was returned to his advocates. Applying the Mtana Lewa definition of adverse possession and the Kasuve requirement of a certified extract of title, the court held that the failure to annex a certified extract of title under the mandatory Order XXXVI rule 3D(2) was fatal, that a letter of allotment is not evidence of title, and that possession taken and held with the owner's permission pursuant to a sale transaction cannot be adverse. The claim was dismissed with costs to the defendant on 31st July 2017.

Key legal issues

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01

Whether failure to annex a certified extract of title defeats an adverse possession claim

Holding

Yes - it is fatal to the claim

Reasoning

The court relied on the Court of Appeal decision in Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others, which held that identification of the land through a certified extract of title is an integral part of proving adverse possession. Order XXXVI rule 3D(2), in force when the originating summons was filed, was couched in mandatory terms. The plaintiff annexed only a letter of allotment, which is not evidence of title, so the claim had to fail on this ground alone.

p. 4
02

Whether the plaintiff's possession was adverse and capable of founding a title by limitation

Holding

No - the plaintiff entered and remained on the land with the defendant's permission pursuant to a sale transaction, and the purchase price was refunded, negating adversity

Reasoning

Under the Mtana Lewa formulation, adverse possession must not be by force, stealth or under the licence of the owner and must be continuous for twelve years. The plaintiff testified in cross-examination that he entered the plot in 1992 with the defendant's permission and still remained with her permission. Possession flowing from a sale that was later unwound by refund of the deposit could not ripen into adverse possession.

p. 4

Legal principles established

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  • In an adverse possession claim it is indispensable that a certified extract of title be produced by the plaintiff; failure to annex one is fatal to the claim
  • Possession entered into with the permission of the owner, pursuant to a sale transaction, cannot qualify as adverse possession

Court orders

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  1. 1.The plaintiff's Originating Summons seeking a declaration that he is the lawful owner of land parcel number 107 Kampi ya Samaki is dismissed
  2. 2.Costs of the suit awarded to the defendant
Jurisdiction invoked
Original jurisdiction under Order XXXVI Rules 3 and 5 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act (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, "Moses Chepkonga Cherono v Margaret Njoki Kinyanjui [2017] KEELC 1953 (KLR)", Case Analysis (2017). Originating Summons dated 27th March 2007 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1953/eng@2017-07-31

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