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ELCAllowedOriginating Summons dated 31st May 2017· [2018] KEELC 1464 (KLR)

Felix Kipchoge Limo Langat v Robinson Kiplagat Tuwei [2018] KEELC 1464 (KLR)

Environment and Land Court (High Court) at Eldoret
6 September 2018
6,528 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan farmer who bought land, paid fully and occupied it for over 12 years won ownership through adverse possession, even without Land Control Board consent.

What this practically means

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Executive summary

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By originating summons dated 31st May 2017, the plaintiff sought a declaration of adverse possession over 2.1 acres (pleaded as 1.214 Hectares) of land parcel Mogobich/Cheptililik/Block 1 (Kipsebwo)/225, registered in the name of the defendant on 17th December 2012 following transfer by his mother, Salome Cheptalam Mutai, the original vendor. The plaintiff testified that between 2000 and 2005 he purchased portions piecemeal from Salome under written agreements, paid the full purchase price, took immediate possession, fenced the land and planted tea, supplying KTDA, Eastern Produce Ltd and Nandi Tea Estates. He placed a restriction on the title in 2014 after learning of the transfer to the defendant. The defendant denied the sale agreements as forgeries and claimed occupation since birth. The court framed five issues: validity of the sale agreements, full payment of the purchase price, necessity of Land Control Board consent, when time began to run, and whether adverse possession was proved. The court found the agreements valid (the defendant having witnessed several of them and pleaded no fraud), payment complete, the transactions void for want of Land Control Board consent but saved by the doctrines of constructive trust and proprietary estoppel following Willy Kimutai Kitilit v Michael Kibet, and adverse possession running from payment and occupation in 2000. The plaintiff's claim was allowed and judgment entered in his favour, with costs to the defendant.

Key legal issues

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01

Validity of the sale agreements between the plaintiff and Salome Cheptalam Mutai

Holding

The court found the sale agreements valid; the defendant, having witnessed the first, third and fifth agreements, could not disown them as forgeries, and he pleaded no particulars of fraud.

Reasoning

The plaintiff and his witnesses proved the sale agreements. The defendant admitted witnessing several of the agreements, and his late brother Jacob Tuwei also witnessed one, so he could not claim they were forgeries. No fraud was pleaded or proved, and the court noted fraud must be specifically pleaded and proved with the relevant agencies engaged. The forgery allegation was dismissed as an afterthought.

p. 6
02

Payment of the purchase price in full

Holding

The court found the allegation that the plaintiff did not pay the purchase price in full was not founded on the evidence.

Reasoning

The plaintiff confirmed on cross-examination that he paid the purchase price in full and owed nothing, even without documents to prove payment. The court reasoned that had payment not been made, the seller or defendant would have claimed the balance; and the defendant's brother would not have sold his portion to the plaintiff had the plaintiff not paid.

p. 6
03

Requirement of Land Control Board consent for the agricultural land transactions

Holding

The transactions required consent and were void under sections 6 and 8 of the Land Control Act, but the court applied equitable principles (constructive trust) notwithstanding the absence of consent.

Reasoning

The land was agricultural and governed by the Land Control Act, so the transactions were void for want of consent. However, following Willy Kimutai Kitilit v Michael Kibet and invoking Articles 10(2)(b), 159(2)(e) and the Sixth Schedule, the court held that lack of consent does not preclude giving effect to constructive trust and proprietary estoppel, as there was a common intention between seller and purchaser.

p. 7
04

Commencement of the limitation period for adverse possession

Holding

Time began to run when the plaintiff paid the purchase price and took occupation in 2000, and had run more than 12 years before the defendant attempted to eject him in 2017.

Reasoning

Following Public Trustee v Wanduru as adopted in Peter Mbiri Michuki, adverse possession runs from the date of payment of the purchase price where the purchaser takes possession. Whether computed from 2000 to 2012 (transfer to the defendant) or from 2005 (last purchase) to 2017 (filing), the 12-year period had elapsed.

p. 7
05

Whether the plaintiff proved adverse possession

Holding

The court held the plaintiff proved open, quiet and uninterrupted possession for more than 12 years and entered judgment for him.

Reasoning

The plaintiff purchased 2.1 acres piecemeal between 2000 and 2005, took possession, demarcated, fenced and planted tea, and was registered as a tea farmer and supplier. The land claimed (2.1 acres) was distinctively identified. The defendant attempted to eject the plaintiff only in 2017, after more than 12 years, without bringing any counterclaim for ejectment.

p. 7

Legal principles established

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  • Prescriptive rights are overriding interests that run with the land irrespective of changes in proprietorship.
  • A purchaser in possession who has paid the purchase price may claim adverse possession, and lack of Land Control Board consent does not preclude reliance on constructive trust and equitable principles.
  • A vendor who transfers land after the purchaser's adverse possession period has run conveys no valid interest; her title is already extinguished.
  • A person alleging fraud must specifically plead and prove it; a witness to a sale agreement cannot later disown it as a forgery.

Court orders

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  1. 1.Judgment entered for the plaintiff on his claim for adverse possession
  2. 2.Costs of the suit to be paid by the defendant

Authorities

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Legislation

  • Land Registration ActSection 28 (overriding interests, including paragraph (h))
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1), (2), (3)
  • Limitation of Actions ActSection 38(1) and (2)
  • Land Control ActSection 6(1) and 6(2); sections 6 and 8 generally; Cap. 302
  • Constitution of KenyaArticle 10(1)(b), 10(2)(b), 159(2)(e); Sixth Schedule, Transitional and Consequential Provisions, clause 7

Cases cited (13)

  • Wasui —V- Musomba
    (2002) 1 KLR 396
  • Mwangi & Another —v— Mwangi
    (1986) KLR 328
  • Public Trustee — v- Wanduru
    (1984) KLR 314
  • Alfeen Mehdimohammed —Vs- Basil Feroz Mohamed & 223 Others
    (2016) eKLR
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Joseph Gachumi Kiritu v Lawrence Munyambu Kabura
    Civil Appeal No. 20 of 1993 (unreported)
  • Llyods Bank Plc – vs- Rosset
    (1991) 1 AC 107, 132
  • Willy Kimutai Kitilit v Michael Kibet
    [2018] eKLR
  • James Mwangi & another =vs= Mukinye Enterprises Limited
    I-ICC No. 3912 of 1986
  • Titus Kigoro Munyi =vs= Peter Mburu Kimani
    Nyeri Court of Appeal Civil Appeal No. 28 of 2014
  • Wilson Kazungu Katana and 101 others =vs= Salim Bakshwei and another
    Malindi CA No. 11 of 2014
  • Francis Gitonga Macharia =vs= Muiruri Waithaka
    Civil Appeal No. 110 of 1997
  • Joseph Macharia =vs= Jonah Kabiru
    Nyeri Court of Appeal Civil Appeal No. 141 of 2009
Jurisdiction invoked
Original jurisdiction under Section 38 of the Limitation of Actions Act (Cap. 22) – application for an order that the applicant be registered as proprietor in place of the registered proprietor

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, "Felix Kipchoge Limo Langat v Robinson Kiplagat Tuwei [2018] KEELC 1464 (KLR)", Case Analysis (2018). Originating Summons dated 31st May 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1464/eng@2018-09-06

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