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ELCAllowedEldoret ELC (formerly Eldoret CMCC / Plaintiff dated 27.9.2012, amended 6.5.2013)· [2018] KEELC 1607 (KLR)

Joyce Eseri Misiko v Martin Barasa & 12 others [2018] KEELC 1607 (KLR)

Environment and Land Court
7 September 2018
AOA. Ombwayo
3,485 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Eldoret Environment and Land Court ruled that registered owners win against long-time occupiers because adverse possession time only starts when the owner is registered.

What this practically means

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Executive summary

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The plaintiff, administratrix of the estate of Lydia Maliatso Misiko under Kakamega High Court Succession Cause No. 396 of 1994, sued fourteen defendants seeking a declaration that they are trespassers on Uasin Gishu/Ngenyilel S. Scheme/361, their eviction, a permanent injunction, costs and interest. The defendants, who claimed to be beneficiaries and purchasers from the estate of the original allottee Kili Arap Rono, denied trespass, alleged the plaintiff's title was fraudulently obtained by listing the parcel in another deceased person's succession, pleaded over 21 years of adverse occupation, and contended the suit was statute-barred and res judicata by virtue of Eldoret CMCC No. 422 of 1996. The court found the property was initially allotted to Kili Arap Rono but remained registered to the Settlement Fund Trustees until 2000, and the plaintiff was registered as proprietor on 25.4.2012 pursuant to a certificate of confirmation of grant dated 22.7.2010. Adverse possession failed: time ran only from the plaintiff's registration, the suit was filed before twelve years elapsed, and the land had been public land excluded by Section 41 of the Limitation of Actions Act. No fraud or illegality was proved against the plaintiff, whose registered title was indefeasible under Sections 25 and 26 of the Land Registration Act, subject to her duty as trustee for the beneficiaries. Res judicata did not apply because the plaintiff was not party to the earlier case and it was not determined on merit. The court declared the defendants trespassers, ordered their eviction on 60 days' notice, granted a permanent injunction, directed distribution per the 2010 certificate of confirmation of grant, and awarded the plaintiff costs with interest at court rates.

Key legal issues

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01

Whether the defendants established adverse possession

Holding

Adverse possession fails because time only began running on 25.4.2012 when the plaintiff was registered, the suit was filed before 12 years expired, and the land was public land before registration

Reasoning

The court adopted Mtana Lewa on the prerequisites of adverse possession and Section 7 and 13 of the Limitation of Actions Act. The plaintiff became registered owner on 25.4.2012 and the suit was filed on 28 September 2012, before the expiry of twelve years. Before that registration, the land remained registered to the Settlement Fund Trustees, hence public land, which Section 41 of the Act excludes from adverse possession claims.

p. 4
02

Whether the plaintiff's title was procured by fraud so as to displace its indefeasibility

Holding

No fraud, misrepresentation or illegality was proved against the plaintiff; her title as registered administratrix stands

Reasoning

The defendants alleged the plaintiff's title was fraudulently obtained, but the court found the alleged transfer by Kili Arap Rono was an in-house arrangement recorded by the Settlement Fund Trustees, and that the plaintiff was registered as proprietor on 25.4.2012 pursuant to a confirmed grant. No evidence of fraud or misrepresentation to which the plaintiff was party, nor illegality or corrupt scheme, was adduced to overcome Section 26(1) of the Land Registration Act.

p. 5
03

Whether the suit is res judicata owing to Eldoret CMCC No. 422 of 1996

Holding

Res judicata does not apply because the plaintiff was not a party to that suit and it was not determined on merit

Reasoning

The defendants pleaded that the same issues over the suit land were litigated and dismissed in Eldoret CMCC No. 422 of 1996. The court held the plaintiff was not a party to that case and the case was not determined on its merits, so the doctrine could not be invoked to bar the present suit.

p. 5

Legal principles established

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  • Adverse possession requires possession that is neither by force, stealth nor licence, and adequate in continuity, publicity and extent, running for twelve years
  • Time for adverse possession runs against a proprietor from the date of her registration as proprietor
  • The Limitation of Actions Act does not enable acquisition of title by adverse possession over public land
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or illegality proved against the proprietor
  • Res judicata does not apply where the plaintiff was not a party to the prior suit and the prior case was not determined on merit

Court orders

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  1. 1.A declaration that the Defendants are trespassers on land parcel Uasin Gishu/Ngenyilel S. Scheme/361 and that the plaintiff is the legal owner
  2. 2.An order of eviction against the defendants, their agents, servants and/or employees from the suit parcel upon the plaintiff issuing a 60 days' notice
  3. 3.A permanent injunction restraining the defendants from trespassing into or interfering with the suit parcel upon vacating the property
  4. 4.The land to be distributed in accordance with the Certificate of Confirmation of Grant dated 22.7.2010
  5. 5.Costs of the suit to the plaintiff with interest at court rates

Authorities

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Legislation

  • Law of Succession ActSections 71(1) and 71(3)
  • Limitation of Actions Act (Cap 22)Sections 7, 13, 37, 38, 41
  • Land Registration ActSections 24(b), 25(1), 26(1), 28

Cases cited (1)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joyce Eseri Misiko v Martin Barasa & 12 others [2018] KEELC 1607 (KLR)", Case Analysis (2018). Eldoret ELC (formerly Eldoret CMCC / Plaintiff dated 27.9.2012, amended 6.5.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1607/eng@2018-09-07

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