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ELCDismissedKitale ELC (Originating Summons) of 2013· [2018] KEELC 1562 (KLR)

Peter M.N. Simatwa v Gatatha Farmer Co. Ltd & another [2018] KEELC 1562 (KLR)

Environment and Land Court
30 May 2018
MNMwangi Njoroge
6,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a man's claim to 38 acres, ruling occupation permitted by a landowner as a licence can never ripen into adverse possession.

What this practically means

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Executive summary

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The plaintiff, grandson of a former employee of Endebess Estates Ltd, filed an Originating Summons on 26/3/2013 seeking a declaration that he had acquired 38 acres out of LR. No. 6137 Trans-Nzoia by adverse possession and an order compelling the defendants to transfer that land to him. The suit shared a background with Kitale ELC No. 57 of 2011, in which Gatatha Farmers Co. Ltd sued the families of former employees, including the plaintiff's father's estate, and that litigation was settled with the Simatwa family receiving Kshs.5,000,000/= compensation. The plaintiff testified with two witnesses; each defendant called one witness. The 1st defendant relied on a statutory declaration by Guy William D'Olier showing the grandfather was permitted to remain on 3 acres for his lifetime as a former employee; the 2nd defendant, the registered proprietor, showed the family had been compensated and had vacated except the plaintiff. The court framed three issues: extent of occupation, entitlement to adverse possession, and costs. It found the plaintiff's claim of 38 acres inconsistent and unproved; the reliable evidence established only 3 acres occupied under a lifetime licence granted to his grandfather as an employee. A licencee cannot claim adverse possession unless the licence is withdrawn. Further, the occupation was interrupted by Eldoret HCCC No. 113 of 1987 and Kitale ELC No. 57 of 2011, and the settlement extinguished the father's claim, under which the plaintiff claimed. The Originating Summons was dismissed with costs to the defendants.

Key legal issues

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01

Extent of the plaintiff's occupation

Holding

Only 3 acres, inherited through his father and grandfather

Reasoning

The plaintiff's claims of 38 acres were internally inconsistent and overlapped with his father's claim. The only reliable evidence was the Guy William D'Olier statutory declaration and DC's meeting proceedings showing the grandfather was permitted 3 acres for his lifetime. The plaintiff, claiming under his predecessors, could claim no more than they were entitled to.

p. 5
02

Nature of the relationship with the landowner

Holding

The plaintiff's predecessors were licencees occupying by virtue of employment

Reasoning

The defendants' evidence, including the statutory declaration of Guy William D'Olier and contemporaneous correspondence, showed the grandfather was allowed to remain only as a former employee for his lifetime. The plaintiff did not controvert this. Occupation under such permission is a licence, defeating adverse possession.

p. 6
03

Entitlement to title by adverse possession

Holding

Claim failed both on the licence finding and on interruption of time

Reasoning

Time did not run continuously: Eldoret HCCC No. 113 of 1987 and Kitale ELC No. 57 of 2011 interrupted possession by assertions of title; the occupation was never peaceful; and the settlement extinguished the father's and hence the plaintiff's claim. Even absent the licence finding, the claim would fail.

p. 7

Legal principles established

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  • Occupation under a licence cannot mature into adverse possession unless and until the consent/licence is withdrawn
  • The running of limitation time is interrupted whenever the landowner asserts title by legal action or effective entry
  • Adverse possession requires occupation nec vi, nec clam, nec precario for 12 years, with all ingredients coexisting throughout the statutory period

Court orders

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  1. 1.The prayers in the Originating Summons dated 26/3/2012 are declined and the Originating Summons is dismissed with costs to the defendants

Authorities

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Legislation

  • Limitation of Actions ActProvisions on adverse possession (12-year period)

Cases cited (3)

  • Wellington Lusweti Barasa & 75 others v Lands Limited & another
    [2014] eKLR
  • Njuguna Ndatho Vs Masai Itumo
    null
  • Patrick Magu Mwangi Kimunyu Vs Joreth Ltd
    2015 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (adverse possession claim by Originating Summons)

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, "Peter M.N. Simatwa v Gatatha Farmer Co. Ltd & another [2018] KEELC 1562 (KLR)", Case Analysis (2018). Kitale ELC (Originating Summons) of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1562/eng@2018-05-30

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