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ELCDismissedNot stated in the judgment· [2018] KEELC 2829 (KLR)

Saka Developers Limited v Mary Aoko Omondi [2018] KEELC 2829 (KLR)

Environment and Land Court of Kenya
20 June 2018
2,016 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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Kenya's Environment and Land Court confirmed that adverse possession can apply to leasehold private land, and that a disappointed government party should appeal, not seek review.

What this practically means

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Executive summary

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The Honourable Attorney General, as an interested party, applied by notice dated 23.8.2017 for review of the judgment and decree entered in this land matter, seeking that the matter start de novo and that he be granted leave to file a defence. He contended that the suit land, L.R. No. Eldoret Municipality/Block 6/274, is leasehold land in which the Government of Kenya is head lessor with a reversionary interest, and that the judgment granting adverse possession offended section 41(a)(i) of the Limitation of Actions Act, which excludes government land. The application was supported by the affidavit of Dorothy Letting, the County Land Registrar, Uasin Gishu, and by the defendant Feisal Sadrudin Nurani. The plaintiff, Mary Aoko Omondi, opposed it, arguing that the issues were legal in nature and thus subject to appeal, not review, and that adverse possession applies to leasehold interests. The court, starting from sections 37, 38, 39 and 41 of the Limitation of Actions Act, held that the Act applies to land previously managed under the Government Lands Act and Registered Land Act, the only exception being public land under section 41. The suit land, having been alienated and leased to the plaintiff, was private land under Article 64 of the Constitution, and adverse possession applied. The court further held that the alleged error was one of law, not apparent on the face of the record, and that the proper remedy was appeal. The application was dismissed with costs on 20 June 2018 at Eldoret.

Key legal issues

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01

Whether review lies on the basis of the alleged section 41(a)(i) error

Holding

No - the alleged error is one of law that would require argument, so it is not an error apparent on the face of the record; the proper remedy is appeal.

Reasoning

The court held that the application rested on points of law rather than facts. An alleged misapplication of law that requires argument and determination cannot be an error apparent on the face of the record. A party who believes the court reached a wrong decision by misapplying the law must take the matter on appeal rather than seek review. The court also found the Attorney General had no immediate sufficient interest since what was in dispute was the leasehold interest, not the reversionary interest.

p. 3
02

Whether adverse possession applies to the leasehold suit property

Holding

Yes - the land is alienated private land under Article 64, not public land, so section 41's exclusion of government land does not apply.

Reasoning

Relying on sections 37, 38, 39 and 41 of the Limitation of Actions Act, the court reasoned that the Act applies to land previously under the Government Lands Act and Registered Land Act, the only exception being public land under section 41. The suit land was alienated government land, leased to the plaintiff, and thus private land under Article 64. The defendant had acquired prescriptive rights over the unexpired period of the lease, and the Attorney General had no sufficient interest in the property.

p. 3

Legal principles established

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  • The Limitation of Actions Act applies to registered land, with the exception of public land under section 41
  • Adverse possession applies to alienated private leasehold land falling under Article 64 of the Constitution
  • A party who alleges the court misapplied the law in the judgment should appeal rather than seek review

Court orders

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  1. 1.The application for review dated 23.8.2017 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Limitation of Actions Actsections 37, 38, 41(a)(i), 39; section 2 (Land Registration Act reference)
  • Land Registration Act, 2012section 2 (head lessor), sections 54 and 55
  • Government Lands Act (Cap. 280)repealed; sections 37/41 references
  • Registration of Titles Act (Cap. 281)section 37 reference
  • Land Titles Act (Cap. 282)section 37 reference
  • Registered Land Act (Cap. 300)section 37 reference; section 120(8)
  • Mining Act (Cap. 306)mines and minerals definition
  • Mineral Oil Act (Cap. 307)definition of mineral oil
  • Water Act (Cap. 372)water vested in the Government
  • Constitution of Kenya, 2010Chapter 5, Articles 60, 62, 64
Jurisdiction invoked
Review jurisdiction over its own judgment (order cited not stated; application dated 23.8.2017)

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, "Saka Developers Limited v Mary Aoko Omondi [2018] KEELC 2829 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2829/eng@2018-06-20

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