Tikoishi ole Nampaso & 2 others v Kipkurui Arap Langat & 11 others [2018] KEELC 3092 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved ownership of the suit properties and wrongful occupation by the defendants
Yes. The plaintiffs produced title deeds and land registrar reports which were unchallenged, while the defence produced no documents; the court found the plaintiffs entitled to exclusive use of the suit properties and declared the defendants' titles wrong and illegal
The plaintiffs traced their root of title to the deceased's parcel Narok/Cismara/Ilmotiok/379, subdivided into the suit properties, and corroborated their claim with title deeds and a land registrar's report arising from site visits in 1994 and 2008. The 12th defendant's own defence admitted that the titles were issued erroneously and that the defendants were wrongfully occupying the plaintiffs' land. The sole defence witness produced no title documents or authority to represent deceased co-defendants. Applying section 26(1) of the Land Registration Act, the court found the plaintiffs' indefeasible title established and the defendants' occupation wrongful.
Whether the defendants' counterclaim for adverse possession under sections 7 and 17 of the Limitation of Actions Act succeeds
Implicitly rejected; the defendants failed to prove their occupation of the suit properties, so no adverse possession was established
The defendants counterclaimed that they had been in open, peaceful, continuous, exclusive and uninterrupted occupation of the suit properties for over 12 years, extinguishing the plaintiffs' title. However, their only witness produced no documents of title and their own defence asserted that their parcels were subdivisions of Narok/Cismara/Ilmotiok/377, not the suit properties. The land registrar's report and the 12th defendant's admissions showed the defendants were occupying the plaintiffs' land erroneously. Having failed to discharge the burden of proving possession of the suit properties, the counterclaim necessarily failed.
Whether the plaintiffs are entitled to damages for trespass and mesne profits
No; mesne profits declined because no specific amount was pleaded or proved
Although the court found trespass proved, it declined mesne profits because no specific sum was claimed in the plaint and no evidence supported any figure. It applied the Court of Appeal decision in Peter Mwangi Mbuthia v Samow Edin Osman & Naftali Ruth Kinyua, where mesne profits were refused on the same basis: it is unfair to force a party to pay an amount neither pleaded nor supported by evidence.
Legal principles established
#- A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, subject only to challenge on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
- Mesne profits cannot be awarded where no specific sum was claimed in the plaint and no evidence supports any figure
Court orders
#- 1.Declaration that the title documents issued by the 12th defendant to the 1st to 11th defendants in respect of the suit properties were wrong and illegal
- 2.Order compelling the 12th defendant to cancel all title deeds issued to the 1st to 11th defendants in respect of the suit properties wrongfully issued to them
- 3.Eviction order evicting the 1st to 11th defendants together with their agents, servants and representatives or any other person from the suit properties
- 4.Permanent injunction restraining the defendants, their agents, servants and representatives from interfering with the plaintiffs' quiet enjoyment and possession of or in any other way dealing with the suit properties
- 5.Judgment entered as prayed in the plaint with costs to the plaintiffs
- Jurisdiction invoked
- Not expressly stated; original jurisdiction over a land dispute (eviction, trespass, cancellation of titles) before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tikoishi ole Nampaso & 2 others v Kipkurui Arap Langat & 11 others [2018] KEELC 3092 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3092/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.