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ELCDismissedOriginating Summons dated 1st October 2015 (Nakuru Environment and Land Court)· [2018] KEELC 2818 (KLR)

Masek Ole Tinkoi & 3 others v Kenya Grain Growers Limited & 2 others [2018] KEELC 2818 (KLR)

Environment and Land Court
29 June 2018
DOD. O. Ohungo
3,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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You cannot claim ownership of Kenyan public or government land through adverse possession, even after living on it for decades.

What this practically means

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Executive summary

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Four plaintiffs claiming to have lived on land reference number 9134/3, Naivasha since the early 1970s filed an Originating Summons seeking declarations that they are entitled to be registered as owners by adverse possession and a permanent injunction restraining the defendants from selling, charging or interfering with the property. The 1st defendant, Kenya Grain Growers Limited, did not enter appearance despite substituted service; the 2nd defendant (Registrar of Companies) and 3rd defendant (Commissioner of Income Tax/KRA) responded by affidavits. The court, hearing the matter on affidavit evidence and written submissions, framed two issues: whether the suit property is government or public land, and whether the relief sought is available. The court found that the 1st defendant was struck off the register of companies pursuant to Gazette Notice No. 3308 of 9th November 1978 and dissolved with effect from 18th February 1979, whereupon its property became bona vacantia and vested in the government. Further, the Commissioner of Income Tax had registered a Notification of Charge over the property for unpaid tax of Kshs. 42,384,095/=, so the land is lawfully used by KRA, a state organ, as security for tax. The property therefore falls within 'land otherwise enjoyed by the Government' under Section 41(a)(i) of the Limitation of Actions Act and public land under Article 62(1) of the Constitution. Adverse possession cannot run against such land, and the relief sought was held to be unavailable. The 3rd defendant's preliminary objection challenging the constitutionality of adverse possession was abandoned. The Originating Summons was dismissed with costs to the 2nd and 3rd defendants.

Key legal issues

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01

Whether the suit property is government or public land

Holding

The property is public land: the 1st defendant was struck off the register of companies in 1979 so its property became bona vacantia and vested in the government, and the land is presently lawfully used by the State (KRA) as security for unpaid tax

Reasoning

The parties and the Registrar of Companies agreed the 1st defendant was struck off pursuant to Gazette Notice No. 3308 of 9th November 1978 under Section 339(3) of the repealed Companies Act. Under Section 340 its property became bona vacantia, vesting in the government. Additionally, the Commissioner of Income Tax registered a Notification of Charge over the property under Section 103(2) of the Income Tax Act for unpaid tax of Kshs. 42,384,095/=. The land therefore falls within 'land otherwise enjoyed by the Government' under Section 41(a)(i) of the Limitation of Actions Act and within public land under Article 62(1) of the Constitution.

p. 5
02

Whether the relief sought is available

Holding

The relief sought is not available because adverse possession does not run against government or public land

Reasoning

Section 41(a)(i) of the Limitation of Actions Act expressly provides that the Act does not enable a person to acquire title to Government land or land otherwise enjoyed by the Government. Having found the suit property to be public land held as security for unpaid tax by a state organ, the court held that the plaintiffs cannot acquire title by adverse possession and dismissed the Originating Summons.

p. 5

Legal principles established

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  • Land lawfully used or enjoyed by the Government, including land held as security for unpaid tax, is public land and cannot be acquired by adverse possession
  • Upon a company being struck off the register, its property becomes bona vacantia and belongs to the government

Court orders

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  1. 1.The Originating Summons is dismissed
  2. 2.Costs of the suit awarded to the 2nd and 3rd defendants

Authorities

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Legislation

  • Limitation of Actions ActSections 7, 13(1)-(3), 38(1), 41(a)(i)
  • Companies Act (repealed)Sections 339(3) and (5), 340
  • Companies Act, 2015Section 905
  • Income Tax ActSections 103(1) and (2)
  • Tax Procedures Act, 2015Sections 32(1), 40, 110
  • Constitution of Kenya, 2010Article 62(1)

Cases cited (2)

  • Virginia Wanjiku Mwangi –vs- David Mwangi Jotham Kamau
    [2013] eKLR
  • Mtana Lewa v Kahindi Nala Mwagandi
    [2015] eKLR
Jurisdiction invoked
Section 38(1) of the Limitation of Actions Act - application by a person claiming to have become entitled to registered land by adverse possession

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, "Masek Ole Tinkoi & 3 others v Kenya Grain Growers Limited & 2 others [2018] KEELC 2818 (KLR)", Case Analysis (2018). Originating Summons dated 1st October 2015 (Nakuru Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2818/eng@2018-06-29

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