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ELCAllowedOriginating Summons dated 8th October 2009 (Eldoret Environment and Land Court)· [2018] KEELC 4180 (KLR)

Valerian Kipngetich Tormoi v Linus Kipkemboi Kor OS & 3 others [2018] KEELC 4180 (KLR)

Environment and Land Court
30 January 2018
MOM. Odeny
5,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court declared a man the owner of 14 acres he had occupied since 1982, ruling that lawsuits over land do not stop adverse possession.

What this practically means

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Executive summary

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By an Originating Summons dated 8th October 2009 the plaintiff sought a declaration that 14 acres in parcels Nandi/Chepterwai/849, 850, 852, 853, 854, 855, 857 and 858 - originally comprising Nandi/Chepterwai/79 - had been acquired by adverse possession. The plaintiff's case was that his late father Joseph Kipyator Tormoi and the defendants' late father Thomas Kiprotich Koros agreed to exchange land between Nandi and Trans-Nzoia; Thomas registered himself as proprietor of the Chepterwai parcel, the exchange aborted, and Thomas never re-transferred it. After Thomas's death his widow Marcella subdivided the parcel among her sons (the defendants). The plaintiff testified he had occupied the land since 1982 with the assistance of the provincial administration, a fact corroborated by PW2 and PW3 and admitted by the 1st defendant, who however maintained the occupation was confined to 0.3 acres of parcel 858, was forcible, and had been interrupted by a series of suits including Succession Cause No. 25 of 1983, PMCC 570 of 1989, Eldoret HCC 231 of 1991, PMCC 19 of 2008 and a Land Dispute Tribunal award. The court, framing three agreed issues, found the plaintiff had been in open, exclusive, quiet and uninterrupted possession since 1982, in excess of twelve years; that the filing of suits, tribunal references and subdivision/re-registration did not interrupt adverse possession; and that the defendants took subject to the plaintiff's accrued rights. The suit was allowed: the court declared the 14 acres the plaintiff's by adverse possession and awarded costs against the defendants. M. Odeny J delivered the judgment at Eldoret on 30th January 2018.

Key legal issues

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01

Whether the plaintiff acquired title to 14 acres by adverse possession

Holding

Yes. The court found the plaintiff had been in open, exclusive, continuous, quiet and uninterrupted possession since 1982, in excess of 12 years, and declared him owner of 14 acres in the subdivided parcels.

Reasoning

The court held the test for adverse possession is open, exclusive, continuous and uninterrupted occupation. The defendants admitted the plaintiff had been on the land since 1982 and had never evicted him. The filing of suits, references to elders, the Land Disputes Tribunal, and the subdivision and re-registration of Nandi/Chepterwai/79 did not interrupt adverse possession. A successor in title acquires no better rights than the first registered proprietor.

p. 7
02

Extent of occupation - 14 acres or 0.3 acres

Holding

The court found for the plaintiff, declaring 14 acres his by adverse possession despite the defendants' contention and the plaintiff's own cross-examination admission that he physically occupied only 0.3 to 0.4 acres.

Reasoning

The plaintiff claimed 14 acres on the basis that his father originally owned that acreage within Nandi/Chepterwai/79 before subdivision into eight parcels. Notably, the plaintiff admitted occupying only 0.2 to 0.4 acres of parcel 858, and the 1st defendant placed the occupation at 0.3 acres. The judgment does not expressly resolve this evidentiary conflict in its analysis, yet the declaration covers the full 14 acres.

p. 8

Legal principles established

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  • The filing of suits and reference of a dispute to elders or tribunals does not amount to interruption of adverse possession.
  • Subdivision and registration of suit land in other names does not change the character of the land nor interrupt adverse possession.
  • Possession to found title by adverse possession must be actual, visible, exclusive, hostile, open and notorious, adequate in continuity, publicity and extent.

Court orders

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  1. 1.Declaration that Fourteen (14) acres in parcels Numbers Nandi/Chepterwai/849, 850, 852, 853, 854, 855, 857 and 858 belong to the plaintiff, having been acquired from the Defendants by way of adverse possession
  2. 2.The defendants to pay costs of the suit

Authorities

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Legislation

  • Evidence Act, Cap 80Section 107(1)

Cases cited (8)

  • Joseph Kimari Mucheru and Three (3) Others v Sammy Kiyo Macharia and Four (4) Others
    [2015] eKLR
  • Githu v Ndeete
    (1984) eKLR 776
  • Kipketer Togom v Isaac Cipriano Shingore
    [2012] eKLR
  • Francis Mungai Kimani v Ngendo Kibogor (Kibogoro)
    [1988] eKLR
  • The Public Trustee and Beatrice Muthoni v Kamau Wanduru
    Court of Appeal Civil Appeal No. 73 of 1982
  • Wilson Kazungu Katana & 101 others v Salim Abdalla Bakshwein & Another
    (2015) eKLR
  • Gabriel Mbui v Mukinda Maranya
    [1993] eKLR
  • Jandu v Kirpal and another
    [1975] EA 225, 232
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a claim for declaration of title 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, "Valerian Kipngetich Tormoi v Linus Kipkemboi Kor OS & 3 others [2018] KEELC 4180 (KLR)", Case Analysis (2018). Originating Summons dated 8th October 2009 (Eldoret Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4180/eng@2018-01-30

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