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ELCPartially AllowedELC No. 908 of 2012 (formerly Eldoret High Court Civil Suit No. 163 of 2012), consolidated with ELC No. 900 of 2012 (O.S) and ELC No. 903 of 2012 (O.S)· [2018] KEELC 2990 (KLR)

Lilian Chepchirchir Rotich v Ruth Jemeli Kiplimo & Norah J. Birgen (Environment & Land Case 908 of 2012) [2018] KEELC 2990 (KLR)

Environment and Land Court of Kenya
25 May 2018
AOA. Ombwayo
5,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Buyers who purchase a deceased person's land from family members without court authority gain no rights and can be evicted.

What this practically means

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Executive summary

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Three suits concerning land carved out of Nandi/Chepkongony/231, registered in the name of Nyanyor Arap Mego, were consolidated under ELC No. 908 of 2012, with the plaintiff claiming as registered proprietor of Nandi/Chepkongony/1171 (2.1 acres) transmitted to her upon confirmation of grant in Eldoret High Court Succession Cause No. 194 of 1997. She sought a declaration of ownership, eviction of the defendants and an injunction. The defendants, who had purchased portions from the widows of the deceased - one acre in 1997 (Ruth Jemeli Kiplimo) and 4.3 acres in 1999 (through Henry Kiprono Birgen, husband of Norah Birgen) - counterclaimed by originating summons for registration as proprietors by adverse possession, asserting over twelve years of open, continuous occupation. The court found the defendants' entry was permissive, having been allowed by the widows, and that limitation could not run against the deceased's estate before confirmation and distribution. The sale agreements were held to be nullities, being acts of intermeddling contrary to section 45 of the Law of Succession Act, and the widows lacked capacity to sell the deceased's property without the consent of the beneficiaries and the court. As registered proprietor, the plaintiff's title under sections 24, 25 and 26 of the Land Registration Act was absolute and indefeasible, with no fraud, illegality or corrupt acquisition proved. The court declared the defendants trespassers, ordered them to vacate within 30 days failing eviction on two months' notice, dismissed the consolidated suits 900 and 903 of 2012, and awarded costs to the plaintiff.

Key legal issues

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01

Whether the defendants acquired title by adverse possession

Holding

No. Their entry was with the permission of the widows and time did not run against the estate of the deceased proprietor before confirmation and distribution; the adverse possession claim fails.

Reasoning

Adverse possession under section 7 of the Limitation of Actions Act requires possession that is open, continuous and adverse - not by force, stealth or licence. The defendants entered with the widows' permission, so their possession was permissive. Further, the registered proprietor was deceased when they entered, and limitation cannot run against a deceased's estate until confirmation and distribution. The agreements were also nullities as intermeddling under section 45 of the Law of Succession Act. The claim therefore fails.

p. 5
02

Validity of the sale agreements executed by the widows/administratrixes

Holding

The agreements were nullities: the widows had no capacity to sell the deceased's property without beneficiaries' consent and court permission, and the transactions constituted intermeddling.

Reasoning

The widows were trustees of the beneficiaries of the estate and could not dispose of the deceased's free property without consent of the beneficiaries and permission of the court. Section 45 of the Law of Succession Act prohibits taking possession or disposing of a deceased's free property without authority. Section 37 requires a surviving spouse's sale of immovable property during a life interest to be with consent of co-trustees and adult children or of the court. The agreements of 1.8.1997 and 16.3.2003 were consequently void and conferred no rights on the purchasers.

p. 5
03

The plaintiff's rights as registered proprietor

Holding

As registered proprietor under sections 24, 25 and 26 of the Land Registration Act, the plaintiff holds absolute and indefeasible title, challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme.

Reasoning

Section 24(a) of the Land Registration Act vests absolute ownership in the registered proprietor, and section 25(1) makes the right of a proprietor not liable to be defeated except as provided by the Act. Section 26 provides that a certificate of title is prima facie evidence of absolute and indefeasible ownership subject only to challenge for fraud or misrepresentation or where the title was acquired illegally, unprocedurally or through a corrupt scheme. None of those grounds was established against the plaintiff's transmission title.

p. 6

Legal principles established

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  • Entry onto land with the permission of the owner's widows is permissive and cannot found a claim in adverse possession
  • Time for adverse possession does not run against a deceased proprietor's estate until after confirmation and distribution of the estate
  • Sale of a deceased person's property without a grant or court authority is an unlawful intermeddling and a nullity conferring no rights
  • A surviving spouse may only sell immovable property subject to a life interest with the consent of co-trustees, adult children, or the court

Court orders

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  1. 1.A declaration that the suit parcel Nandi/Chepkongony/1171 belongs to the plaintiff
  2. 2.The defendants ordered to vacate the suit parcel within 30 days, failing which they be evicted upon service of two months' notice
  3. 3.Suit No. 900 of 2012 and Suit No. 903 of 2012 consolidated with the lead file dismissed
  4. 4.Costs to the plaintiff

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Limitation of Actions Actsection 13(1),(2),(3)
  • Limitation of Actions Actsections 37 and 38
  • Law of Succession Act Cap 160section 45(1),(2)
  • Law of Succession Actsection 37
  • Law of Succession Actsections 35 and 36
  • Land Registration Act No. 3 of 2012section 24(a)
  • Land Registration Actsection 25(1)
  • Land Registration Actsection 26
On appeal from
High Court of Kenya at Eldoret (Succession Cause No. 194 of 1997 discussed as background; no appeal heard)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land ownership, possession and title (Environment and Land Court Act), proceedings consolidated in ELC No. 908 of 2012 as the lead file

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lilian Chepchirchir Rotich v Ruth Jemeli Kiplimo & Norah J. Birgen (Environment & Land Case 908 of 2012) [2018] KEELC 2990 (KLR)", Case Analysis (2018). ELC No. 908 of 2012 (formerly Eldoret High Court Civil Suit No. 163 of 2012), consolidated with ELC No. 900 of 2012 (O.S) and ELC No. 903 of 2012 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2990/eng@2018-05-25

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