Tamurei Kobilo Chepkaitany v Joanes Ochiel Nyawara & another [2018] KEELC 2484 (KLR)
The bottom line
#A Kenyan court awarded a woman title to land she occupied and developed for over 17 years, holding the registered owner must now transfer it to her.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant proved a claim for adverse possession
The court held that the applicant proved open, continuous and uninterrupted possession since 1997, corroborated by the 1st respondent's wife and an area chief, and that the respondents' contradictory evidence was not credible
The court found the sale agreement undisputed and the 2nd respondent's admission that he bought the land established. The applicant took possession immediately upon purchase, fenced, developed and collected rent for over 12 years. The respondents tendered no evidence to counter her occupation, and their purported resale agreement confirmed the developments while contradicting their denials, so it was dismissed as a ploy.
Whether the 1st respondent held the suit land in trust for the applicant
Applying Public Trustee v Wanduru Ndegwa, the registered proprietor holds in trust for the adverse possessor once the limitation period runs; possession from 1997 started time running against the registered owner
Relying on Public Trustee v Wanduru Ndegwa (1984) KLR 314, the court held that a purchaser in possession after payment of the purchase price is the person in whose favour limitation runs, and the registered proprietor becomes a trustee of the person acquiring title under the Limitation of Actions Act. Possession taken in 1997, corroborated by Serah Muthoni Chege, started time running.
Legal principles established
#- A purchaser who takes possession after paying the purchase price is the person in whose favour the limitation period runs, and the registered proprietor holds in trust for the person who has acquired title by limitation
- To succeed in adverse possession, the possessor must show possession that is adequate, continuous and exclusive, adverse to the proprietor
Court orders
#- 1.The Applicant has acquired title to parcel of land known as UASIN GISHU/KIMUMU SCHEME/4441 measuring 0.1Ha or thereabouts by adverse possession and should be registered in the applicant's name
- 2.The 1st Respondent is ordered to execute all such documents of transfer to facilitate the transfer of UASIN GISHU/KIMUMU SCHEME/4441 to the applicant within 30 days, failure of which the Deputy Registrar shall execute the documents of transfer
- 3.The respondents to pay the costs of this suit
- Jurisdiction invoked
- Sections 37 and 38 of the Limitation of Actions Act, Cap 22 (application to the High Court/Environment and Land Court for an order vesting land in a person entitled by adverse possession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tamurei Kobilo Chepkaitany v Joanes Ochiel Nyawara & another [2018] KEELC 2484 (KLR)", Case Analysis (2018). E&L No. 110 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2484/eng@2018-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.