Alice Muhonja Kirambi v Redempta Susan Chetambe & another [2018] KEELC 2702 (KLR)
The bottom line
#A Kenyan court gave land to a buyer who occupied it openly for over 12 years after the sale agreement lapsed for lack of Land Control Board consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved the ingredients of adverse possession
Yes - the plaintiff was in open, peaceful and continuous occupation of the suit land for more than 12 years, since 1996, and her title by adverse possession was extinguishing of the defendant's title
The court found credible evidence that the plaintiff paid Kshs.340,000 on 26/4/1995 and Kshs.280,000 on 12/7/1995 as final payment of the sale consideration. With no Land Control Board consent within six months, the agreement became void on 11/1/1996 and time ran from then. Her occupation was open, without force or secrecy, uninterrupted for over 12 years, with no re-entry or suit for recovery by the defendant.
When time began to run for purposes of prescriptive rights
Time ran from 11/1/1996, six months after the last payment of the sale consideration, when the agreement became void for want of Land Control Board consent
The court found the sale agreement dated from the payment of Kshs.280,000 on 12/7/1995. Consent to transfer ought to have been obtained within six months. As none was granted, the agreement became void on 11/1/1996 and the plaintiff's occupation from that date was adverse. Alternatively, the plaintiff's own case was occupation since 1996, over 12 years before suit.
Whether the defendant's alleged lease arrangement explained the plaintiff's occupation
No - no written lease or evidence of periodic payments was produced, and the defendant's version was not credible
The defendant alleged a lease at Kshs.2,000 per acre from 1996, but produced no written lease or evidence of periodic payments. The court found it implausible that Kshs.300,000 was paid for such a lease, and noted the defendant's own affidavit offered to refund the Kshs.300,000 upon the plaintiff vacating, inconsistent with a spent lease.
Legal principles established
#- To prove adverse possession a plaintiff must take possession, assert rights adverse to the owner's title, and be in open, continuous, peaceful and public possession without force or secrecy for at least 12 years
- An action to recover land may not be brought after the end of twelve years from the date the right of action accrued
- Where a sale agreement required Land Control Board consent and no consent was obtained within six months, the agreement becomes void at the expiry of six months and time for adverse possession may run from that date
Court orders
#- 1.Judgment entered in favour of the plaintiff against the defendant in terms of prayers (A), (B), (D) and (E) of the Originating Summons dated 3/11/2014
- 2.Declaration that the plaintiff has acquired title to Title No. Trans-Nzoia/Liyavo/187 by adverse possession
- 3.The plaintiff to be registered as proprietor of Title No. Trans-Nzoia/Liyavo/187 in place of the defendant
- 4.An order vesting rights in respect of Title No. Trans-Nzoia/Liyavo/187 in the plaintiff in the place of the defendant
- 5.Costs of the Originating Summons awarded to the plaintiff
- 6.The Deputy Registrar of the Court to execute on the defendant's behalf all necessary documents required to effect the transfer of the suit property into the plaintiff's name
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over title and occupation of land (suit property Title No. Trans-Nzoia/Liyavo/187)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alice Muhonja Kirambi v Redempta Susan Chetambe & another [2018] KEELC 2702 (KLR)", Case Analysis (2018). Originating Summons dated 3/11/2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2702/eng@2018-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.