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ELCAllowedOriginating Summons (number not stated in judgment)· [2018] KEELC 2606 (KLR)

Cathy Alucia Jebor Kiplagat v Vincent Komen Krelkut [2018] KEELC 2606 (KLR)

Environment and Land Court of Kenya
12 July 2018
AOA. OMBWAYO
2,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan buyer who occupied farmland for over twelve years after an incomplete sale won full ownership through adverse possession.

What this practically means

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Executive summary

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The plaintiff, Cathy Alucia Jebor Kiplagat, brought an originating summons against the registered owner, Vincent Komen Krelkut, claiming five acres of L.R. NO. MOIBEKI/MOIBEKI/BLOCK 1(MOIBEN)/66 by adverse possession. She testified that in February 2005 she bought the five acres from the defendant under an oral agreement at Kshs. 45,000 per acre (Kshs. 225,000 total), paid through an account furnished by an intermediary, took immediate and uninterrupted possession, and developed the land. The sale agreement was never completed by transfer because the Land Control Board consent was never obtained, the defendant having refused to execute the forms and his whereabouts remaining unknown since he relocated in 2005. The defendant, though personally served, did not enter appearance or file a defence, leaving the plaintiff's evidence unchallenged. The court framed the sole issue as whether the plaintiff was in adverse possession. Applying Mtana Lewa v Kahindi Ngala Mwagandi and Sections 7, 13, 37 and 38 of the Limitation of Actions Act, the court found the plaintiff had proved peaceful, open and uninterrupted possession since February 2005, well beyond the twelve-year limitation period. It declared that she had obtained title by adverse possession, that the defendant's title over the five acres was extinguished, issued a vesting order vesting the five acres in the plaintiff, and ordered the defendant to pay the costs of the originating summons. Judgment dated, signed and delivered at Eldoret on 12 July 2018.

Key legal issues

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01

Whether the plaintiff acquired title by adverse possession over the five acres

Holding

Yes. The plaintiff proved on a balance of probabilities peaceful, open and uninterrupted possession and use of the suit land since February 2005, exceeding twelve years, extinguishing the defendant's title.

Reasoning

The court applied Mtana Lewa v Kahindi Ngala Mwagandi on the doctrine of adverse possession and Sections 7, 13, 37 and 38 of the Limitation of Actions Act. The defendant was served but did not enter appearance or file a defence, so the plaintiff's evidence was unchallenged. Possession since February 2005 exceeded the twelve-year limitation period, and the defendant's inaction allowed the limitation period to run.

p. 4

Legal principles established

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  • Adverse possession in Kenya requires twelve years of possession that is neither by force, stealth nor licence of the owner, and must be adequate in continuity, publicity and extent
  • Where land is registered, title is not extinguished by adverse possession until a court order vesting the land in the adverse possessor is obtained and registered

Court orders

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  1. 1.A declaration that the plaintiff, Cathy Alucia Jebor Kiplagat, has obtained title by adverse possession over five (5) acres comprised in L.R. NO. MOIBEKI/MOIBEKI/BLOCK 1(MOIBEN)/66 having been in uninterrupted possession and use of the same since February 2005
  2. 2.A finding that the defendant's title over the said five acres has been extinguished by dint of adverse possession as provided by the Limitation of Actions Act, Cap. 22
  3. 3.A vesting order vesting the five (5) acres comprised in the suit parcel of land in the plaintiff
  4. 4.The defendant condemned to pay the costs of the originating summons

Authorities

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Legislation

  • Limitation of Actions ActSection 4(1)(a)
  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 13(1)-(3)
  • Limitation of Actions ActSection 37
  • Limitation of Actions ActSection 38

Cases cited (1)

  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land, on an originating summons under the Limitation of Actions Act, Cap. 22 (Sections 7, 13, 37 and 38)

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, "Cathy Alucia Jebor Kiplagat v Vincent Komen Krelkut [2018] KEELC 2606 (KLR)", Case Analysis (2018). Originating Summons (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2606/eng@2018-07-12

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