Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNyeri Environment and Land Court Originating Summons (number not stated in the judgment; amended-amended O.S dated 31st January 2012)· [2017] KEELC 2004 (KLR)

Joseph Lekamario & 248 Others v African Wildlife Foundation & 4 others [2017] KEELC 2004 (KLR)

Environment and Land Court of Kenya (High Court)
27 June 2017
10,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

#

A Kenyan court dismissed a community's claim to a Laikipia ranch, holding that adverse possession claims must name the registered owner and prove 12 years of exclusive possession.

What this practically means

#

Executive summary

#
This is a first-instance judgment of the Nyeri Environment and Land Court delivered on 27th June 2017 (dated and signed by Waithaka J on 15th June 2017 and delivered by Ngaah Jairus J) in an originating summons by 249 plaintiffs of the Kisargei/Suguroi/Pois Samburu communities claiming LR No.10068 Laikipia (Kabarak/Elands Down farm) by adverse possession, prescriptive easements and, by amendment, ancestral/native title arising from alleged historical injustices traceable to the Anglo-Maasai Agreements of 1904 and 1911. They sought registration as proprietors in common in place of the registered proprietor, vesting of easements, eviction and permanent injunctions against the respondents: Ol Pejeta Conservancy Limited (1st), Hon. Daniel Toroitich arap Moi (2nd) and Kenya Wildlife Service (3rd), with Prof. Yash Pal Ghai appearing as 2nd interested party. Ten plaintiffs' witnesses and nine respondents' witnesses testified. The court found the property was registered in favour of Ol Pejeta Ranching Limited in 1962, transferred to the 2nd respondent on 21st November 1997 and to the 3rd respondent on 4th November 2011 during the suit. Applying Wilson Kazungu Katana, Wanje v. Saikwa, Kasuve v. Mwaani and Wambugu v. Njuguna, it held the claim could not extend to Ol Pejeta Ranching Limited, which was never joined (Mwinyi Hamisi Ali; Pashito Holdings); that if time ran against the 2nd respondent from 1997, it expired on 21st November 2010, after the plaintiffs' claimed eviction in March 2009; and that the plaintiffs never dispossessed the proprietors, who remained in control as a cattle ranch. It declined to convert the statutory claim into a constitutional petition on historical injustices, holding those belong to the National Land Commission (Ledidi Ole Tauta). The suit was dismissed with costs to the respondents.

Key legal issues

#
01

Whether the plaintiffs proved adverse possession for over 12 years

Holding

The claim failed. Even assuming occupation, the plaintiffs were evicted in March 2009, before the 12-year period against the 2nd respondent's title (which began running on 21st November 1997) expired on 21st November 2010; moreover the evidence showed the registered proprietors remained in control and the plaintiffs never dispossessed them or caused discontinuance of possession.

Reasoning

The court computed the limitation period from the date the 2nd respondent was registered (21st November 1997) and found the plaintiffs' own pleadings and testimony showed eviction in 2009, before the right of action accrued. On the evidence of the respondents' witnesses (livestock records, employee rolls, valuation report, daily cattle counts), the land was used as a cattle ranch at all material times and the plaintiffs' witnesses were contradictory about entry dates and occupation. Occasional trespass and grazing, including with consent, did not dispossess the proprietors.

p. 17
02

Whether a claim for adverse possession can be urged against the title of Ol Pejeta Ranching Limited, which was never joined

Holding

No. Extinction of a registered proprietor's title can only be decreed if that proprietor is a party; the claim against Ol Pejeta's period of registration could not be entertained.

Reasoning

Relying on Mwinyi Hamisi Ali and the natural justice rule of audi alteram partem (as explained in Pashito Holdings), the court held that a declaration extinguishing title cannot be made against a person who has not been heard. The plaintiffs, though claiming entry from 1984 during Ol Pejeta's ownership, never joined it, so their claim could only be restricted to the title held by the 2nd respondent.

p. 15
03

Whether orders could issue against the 3rd respondent which acquired title during the pendency of the suit without amended affidavits

Holding

Yes, the court could determine the claim against the 3rd respondent notwithstanding the pleadings defect, since the case was clear and no prejudice was shown, under Article 159 and Section 3A; but any order depended on whether the 2nd respondent's title had been extinguished, which it had not.

Reasoning

Although parties may not depart from their pleadings without amendment, the overriding objective permits flexibility absent prejudice. The court noted that a title passed to the 3rd respondent is only good if the transferor had good title to pass; had the 2nd respondent's title been extinguished by adverse possession at transfer, the finding would affect the 3rd respondent's title.

04

Whether the claim founded on ancestral/native title and historical injustices could be sustained in this suit

Holding

No. The claim as pleaded was statutory (adverse possession under the Limitation of Actions Act), not a constitutional petition; the court declined to elevate it and held that historical land injustices are for the National Land Commission under Article 67(2)(e).

Reasoning

The 2nd interested party (Prof. Yash Pal Ghai) urged a purposive constitutional approach under Article 20, but the court found he did not demonstrate that the applicable statutes failed to give effect to any fundamental right. Citing Ledidi Ole Tauta, the court held it is not the first-instance forum for historical injustices and should not usurp the NLC's mandate.

p. 18
05

Whether the plaintiffs could be granted orders as an apparently amorphous group and whether their claim was mutually exclusive

Holding

The court did not expressly rule on the amorphous-group objection but found the claim unsustainable in any event; the respondents had argued the plaintiffs were an amorphous entity and that the adverse possession and ancestral title prayers were mutually exclusive.

Reasoning

The 1st respondent argued, on Wilson Kazungu Katana, that no orders could issue to an amorphous group whose witnesses entered at different times and identified variously as Kisagei, Suguroi, Pois or Samburu communities. The court resolved the suit on the merits of adverse possession and the absence of necessary parties rather than on identity grounds.

p. 9
06

Whether the plaintiffs proved easements of 20 years over the suit property

Holding

No. The easement claim was tied to the failed adverse possession claim and was unsustainable for the same reasons.

Reasoning

The plaintiffs claimed prescriptive easements over ways, stock routes, boreholes, dams and watercourses. The court found the claim was tied to adverse possession, which failed. The 1st respondent had also relied on Benina Ndugwa Kunyumu to distinguish easement claims from adverse possession claims and objected that such a claim cannot lie over an entire property.

p. 19

Legal principles established

#
  • A claim for adverse possession cannot succeed against a registered proprietor who was not made a party to the suit, because extinction of that proprietor's title cannot be decreed without hearing him
  • To acquire title by adverse possession the claimant must prove open and exclusive possession adverse to the title owner for over twelve years, having dispossessed the owner or upon discontinuance of possession by the owner
  • Where an owner makes little present use of land, acts done on it by others may not amount to possession inconsistent with the owner's title
  • A court trying a statutory claim for adverse possession must restrict itself to the applicable statutory framework and the facts; historical land injustices are for the National Land Commission, not the court in the first instance
  • Time for adverse possession against a transferee registered proprietor begins to run when that proprietor becomes registered
  • Under Article 159 of the Constitution and Section 3A of the Civil Procedure Act, a court may dispense with procedural technicalities where no prejudice is caused

Court orders

#
  1. 1.The plaintiffs' suit (originating summons as amended) is dismissed with costs to the respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159; Article 20 (incl. 20(3)(a)); Article 63(1); Article 67(1) and 67(2)(e)
  • Civil Procedure Act (Cap 21)Section 3A; Section 63(c) and (d)
  • Civil Procedure RulesOrder 36 Rules 3D, 7, 8, 8B, 10(1)
  • Limitation of Actions Act (Cap 22)Sections 7, 13(1), 15, 17, 37 and 38

Cases cited (21)

  • Mtana Lewa v. Kahindi Ngara Mwagandi
    (2015) eKLR
  • Harrison Ngige Kaara vs Gichobi Kaara & Another
    (1997) eKLR
  • Alfan Said & 8 Others v. Najib Islam Omar & Another
    (2010) eKLR
  • Wilson Kazungu Katana & 101 Others v. Salim Abdalla Bakshwein & Another
    (2015) eKLR; Malindi Court of Appeal Civil Appeal No. 11 of 2014
  • Benina Ndugwa Kunyumu and 4 others v. National Land Commission
    (2015) eKLR
  • Central Kenya Limited v. Trust Bank Limited and Others
    (1995-98) 2 EA 52
  • Wambugu v. Njuguna
    (1983) KLR 172
  • Public Trustee v. Wanduru
    (1984) KLR 314
  • Kimani Ruchine & Another v. Swift, Rutherfor Co. Ltd & Another
    (1976-80) 1 KLR
  • Githu v. Ndeete
    (1984) KLR 776
  • Haro Yonda Juaje v. Sadaka Dzengo Mbauro & Another
    (2014) eKLR
  • Parkire Stephen Munkasio & 14 others v. Kedong Ranch Ltd & 8 Others
    (2015) eKLR
  • Mt. Elgon Hardware v. United Millers Ltd
    Kisumu Court of Appeal Civil Appeal No. 19 of 1996
  • Mwinyi Hamisi Ali v. The Attorney General & Another
    Mombasa Court of Appeal Civil Appeal No. 125 of 1997
  • William Gatuhi vs. Gakuru Gathimbi
    Nairobi Court of Appeal Civil Appeal No. 49 of 1996
  • Peter Mbiri Michuki v. Samuel Mugo Michuki
    Nyeri Court of Appeal Civil Appeal No. 22 of 2013
  • Titus Kigoro Munyi v. Peter Mburu Kimani
    Nyeri Court of Appeal Civil Appeal No. 28 of 2014
  • Pashito Holdings Limited & Another v. Paul Nderitu Ndungu & 2 Others
    (1197) eKLR [as printed]
  • Kasuve v. Mwaani Investment Ltd & 4 others
    (2004) 1 KLR 184
  • Wanje v. Saikwa (No.2)
    (1984) KLR 284
  • Ledidi Ole Tauta & Others v. Attorney General & 2 others
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction under the Limitation of Actions Act (Cap 22) and Civil Procedure Act (Sections 3A, 63(c) and (d); Order 36 Rules 3D, 7, 8, 8B, 10(1)), read with Article 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Lekamario & 248 Others v African Wildlife Foundation & 4 others [2017] KEELC 2004 (KLR)", Case Analysis (2017). Nyeri Environment and Land Court Originating Summons (number not stated in the judgment; amended-amended O.S dated 31st January 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2004/eng@2017-06-27

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