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ELCAllowedNot stated in judgment· [2018] KEELC 1048 (KLR)
Reuben K. Chelagat v Paulina Kobilo Kipkelwon (Sued in her Personal Capacity and as the Administrator of the Estate of Symon Kipkelwon Chebet (Deceased)) [2018] KEELC 1048 (KLR)
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·~4 min to read original · ~4 min briefThe bottom line
#A Kenyan court ruled that a man who openly occupied and farmed 1¼ acres of someone else's land for over 35 years now legally owns it.
What this practically means
#Executive summary
#The plaintiff sued the defendant, the administratrix of the estate of Symon Kipkelwon Chebet, claiming to have acquired 1¼ acres of land parcel No. Baringo/Kapropita/308 by adverse possession. He sought declarations that he had been in personal, peaceful, open and uninterrupted occupation of the portion since 1983; that the defendant's title had been extinguished after 12 years; that the defendant held the land in trust for him; an order under section 38 of the Limitation of Actions Act, Cap 22 registering him as the rightful owner; and an order compelling the defendant to execute transfer documents, failing which the Deputy Registrar to do so. The defendant was served but failed to enter appearance or file a replying affidavit, leaving the plaintiff's evidence uncontroverted. The court set out the settled criteria for adverse possession from Maweu v Liu Ranching and Farming Cooperative Society, and the principles in Samuel Miki Waweru v Jane Njeru Richu, Jandu v Kirpal and Wambugu v Njuguna that possession under permission or a licence becomes adverse only upon determination of the licence. Holding that the plaintiff proved on a balance of probabilities more than 12 years of adverse possession, the court declared his title extinguished the defendant's rights, made a trust declaration in his favour, ordered his registration as proprietor of the 1¼ acres under section 38, directed execution of transfer documents with the Deputy Registrar empowered to execute on default, and condemned the respondent to pay costs. Judgment delivered at Eldoret on 25 October 2018 by A. Ombwayo J.
Key legal issues
#01
Whether the plaintiff proved adverse possession of 1¼ acres of parcel No. Baringo/Kapropita/308
Holding
Yes - the plaintiff proved title by adverse possession on a balance of probabilities, having occupied peacefully, openly and uninterruptedly since 1983, so the defendant's title was extinguished and she holds the land in trust for the plaintiff
Reasoning
The court applied the settled criteria in Maweu v Liu Ranching: possession must be adequate in continuity, publicity and extent and adverse to the registered owner. The plaintiff's uncontroverted evidence showed over 12 years of peaceful, open and uninterrupted personal occupation since 1983. On a balance of probabilities the defendant's title was extinguished by section 38 of the Limitation of Actions Act, entitling the plaintiff to registration.
p. 2
Legal principles established
#- To prove title by adverse possession, possession must be adequate, in continuity, in publicity, in extent, and adverse to the registered owner
- A claim of adverse possession cannot succeed where possession is with the owner's permission or under an agreement of sale or lease
- Where a claimant is in exclusive possession under a valid agreement (leave and licence), possession becomes adverse when the licence is determined
Court orders
#- 1.Declaration that the applicant was in personal occupation of 1¼ acres of title No. Baringo/Kapropita/308 for over 12 years with peaceful, open and uninterrupted occupation since 1983
- 2.Declaration that the defendant's right over the said 1¼ acres was extinguished by adverse possession upon expiry of 12 years
- 3.Declaration that upon expiry of 12 years the defendant held the said parcel in trust for the applicant
- 4.Order that under section 38 of the Limitation of Actions Act, Cap 22, the applicant be registered as the rightful owner of the parcel
- 5.Order that the respondent execute all documents of transfer in respect of the said 1¼ acres, failing which the Deputy Registrar of the court be empowered to do so on her behalf
- 6.The respondent condemned to pay costs of the suit
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya (claim for registration as proprietor by adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben K. Chelagat v Paulina Kobilo Kipkelwon (Sued in her Personal Capacity and as the Administrator of the Estate of Symon Kipkelwon Chebet (Deceased)) [2018] KEELC 1048 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1048/eng@2018-10-25
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