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ELCDismissedOriginating Summons dated 9th June 2015 (Kericho ELC)· [2018] KEELC 3021 (KLR)

Gilbert Kimutai Koech v Wilson Kipngeno Koech [2018] KEELC 3021 (KLR)

Environment and Land Court
18 May 2018
1,565 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A man who lived on his step-brother's Kericho land with permission could not claim ownership through adverse possession, so his suit was dismissed.

What this practically means

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Executive summary

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The plaintiff, by Originating Summons filed on 9th June 2015, sought a declaration that he was entitled to 0.58 hectares of KERICHO/KAPTEBENGWET/450 by adverse possession, that the defendant be deregistered as proprietor and the plaintiff registered in his place, and a permanent injunction against eviction or interference. The plaintiff deponed that the defendant, his step-brother, had irregularly registered himself as owner in 1999 without family consent, while the plaintiff had been in open, peaceful and continuous occupation for over 35 years, only learning of the registration in 2014. The defendant countered that their late father transferred the land to him in 1999 and that he permitted the plaintiff, a family member, to remain on the land. The court framed three issues: whether adverse possession was established, whether the plaintiff was entitled to the parcel, and costs. Applying Jaber Mohsen Ali v Priscillah Boit, the court noted the requirements of occupation nec vi, nec clam, nec precario plus animus possidendi for 12 years under sections 7, 13 and 38 of the Limitation of Actions Act. However, relying on Mbui v Maranya and Rodgers Mwambonje v Douglas Mwambonje, the court held that the plaintiff, as a family member occupying with the defendant's consent, was not a trespasser and his occupation was not adverse. The suit was dismissed with costs to the defendant on 18th May 2018.

Key legal issues

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01

Whether the plaintiff established adverse possession of KERICHO/KAPTEBENGWET/450

Holding

No. The plaintiff, the defendant's step-brother, occupied the land with the defendant's consent, which negates the adversity of possession

Reasoning

The court accepted the test in Jaber Mohsen Ali v Priscillah Boit that possession must be open, without force, secrecy or permission, with animus possidendi, for 12 years under sections 7, 13 and 38 of the Limitation of Actions Act. Following Mbui v Maranya and Rodgers Mwambonje v Douglas Mwambonje, the court held that a family member living on a relative's land by the owner's indulgence is not a trespasser; allowing such a claim would bastardize the doctrine of adverse possession and undermine cultural foundations.

p. 3
02

Who should bear the costs of the suit

Holding

The plaintiff, as the losing party, to bear the defendant's costs

Reasoning

Having failed to prove his claim on a balance of probabilities, the plaintiff was ordered to pay the costs of the suit.

p. 3

Legal principles established

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  • Adverse possession requires occupation that is open, without force, without secrecy and without the licence or permission of the land owner, together with animus possidendi, and matures after 12 years of possession
  • A family member in occupation of a relative's land with the owner's consent is not a trespasser and cannot found a claim of adverse possession

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Actsections 7, 13 and 38
  • Registered Land Act

Cases cited (3)

  • Jaber Mohsen Ali & Another v Priscillah Boit & Another
    (2014) eKLR
  • Mbui v Maranya
    (193) KLR
  • Rodgers Mwambonje v Douglas Mwambonje
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land; claim founded on sections 7, 13 and 38 of the Limitation of Actions Act (Cap 22)

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, "Gilbert Kimutai Koech v Wilson Kipngeno Koech [2018] KEELC 3021 (KLR)", Case Analysis (2018). Originating Summons dated 9th June 2015 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3021/eng@2018-05-18

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