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ELCAllowedOriginating Summons dated 3rd October 2012, Kitale· [2019] KEELC 1352 (KLR)

Alice Chemandan Siyoi v Joel Kiptoo Ng’eno & 3 others; John Thuo Gakuru(Interested Party) [2019] KEELC 1352 (KLR)

Environment and Land Court of Kenya
3 October 2019
5,353 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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What this practically means

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Executive summary

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The plaintiff, widow of a deceased purchaser, filed an Originating Summons in 2012 seeking a declaration of adverse possession over Kitale Municipality Block 15/Koitogos/1011. She averred that her late husband bought 5 acres from the 1st defendant in 1988 for Kshs.210,000, took immediate possession, fenced it, built structures, planted trees and buried their son there, and that the 1st defendant fraudulently transferred the land to his children (the 2nd-4th defendants) in December 2011, who subdivided it and sold portions to the interested party. The defendants contended the agreement was with the husband only, was rescinded in 1991 with the purchase price deposited with an advocate for refund, that the plaintiff was never in occupation, and that she lacked locus standi. The interested party claimed to be a purchaser for value without notice of the suit. The court held the agreement dated 22/11/1988 was admitted and not proved to have been rescinded, since the 1st defendant did not prove the refund was made available or that possession was ever interrupted. Objections based on section 3(3) of the Law of Contract Act and lack of land control board consent failed, the summons being founded solely on adverse possession. Possession from 1988 was open, peaceful and uninterrupted; time expired by 2000 at the latest, extinguishing the 1st defendant's title, which he thereafter held in trust for the plaintiff. The plaintiff's possession enured to her despite not being party to the agreement. Judgment was entered for the plaintiff: declarations of adverse possession, that the transfers and subdivision were null and void, cancellation of the mutations and reversion of the title, an order for transfer to the plaintiff, and costs against the defendants.

Key legal issues

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01

Whether the 1st defendant effectively rescinded the sale agreement in 1991

Holding

Rescission not proved; there was insufficient evidence of a refund actually deposited and made available, and of eviction or interruption of possession

Reasoning

The only evidence of termination was a letter from the 1st defendant's advocates. He failed to prove the funds were deposited and the family received or was enabled to collect them, and failed to show eviction or interruption of possession. The agreement was severable; 5 acres were paid for and occupied, so the agreement was not wholly rescinded.

p. 4
02

Whether the suit is defeated for want of compliance with section 3(3) of the Law of Contract Act or lack of land control board consent

Holding

Neither point defeats the claim: the suit is founded on adverse possession, not contract, and lack of LCB consent does not defeat the claim per cited Court of Appeal decisions

Reasoning

The Originating Summons mentions no contract; its sole basis is adverse possession, so section 3(3) is inapplicable. On consent, the court noted a line of Court of Appeal authority holding lack of land control board consent does not defeat such claims, and no evidence of forgery was presented.

p. 4
03

Whether the plaintiff proved adverse possession for the requisite 12 years

Holding

Yes; possession from 1988 was open, peaceful and uninterrupted, and time expired in 2000 (or 2003 at latest)

Reasoning

Possession taken in 1988 under the sale agreement was continuous, open and inconsistent with the owner's rights. No eviction suit was brought within 12 years of the agreement (or of the purported 1991 rescission), so the owner's title was extinguished. Possession by the deceased husband enured to the plaintiff as his wife.

p. 6
04

Whether the land in the agreement is the same as the parcel named in the Originating Summons

Holding

Issue dismissed; defendants never specifically denied identity of the land in their pleadings, and raising it now would amount to ambush

Reasoning

Parties are bound by their pleadings. The defendants' replying affidavits contained no specific denial that plot No. 9 Koitogos Farm corresponded to LR Kitale Municipality Block 15/Koitogos/1011, so no burden shifted to the plaintiff and the point could not be raised at trial.

p. 4

Legal principles established

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  • A purchaser in possession of land purchased, after having paid the purchase price, is a person in whose favour the period of limitation can run
  • Possession need not be actual and physical; it can be constructive, and fencing or cultivation suffices
  • Time under the Limitation of Actions Act ceases to run when the owner asserts his right or the adverse possessor admits it

Court orders

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  1. 1.A declaration that the plaintiff has been and is in adverse possession of land parcel No. Kitale Municipality Block 15/Koitogos/1011
  2. 2.A declaration that upon the expiry of 12 years from 1988 the 1st defendant held the title to the land in trust for the plaintiff and had no title of his own to transfer to the 2nd, 3rd and 4th defendants
  3. 3.A declaration that the transfer of the suit land to the 2nd, 3rd and 4th defendants, its subdivision and transfer to the interested party are illegal, null and void
  4. 4.An order cancelling the subdivision of Kitale Municipality Block 15/Koitogos/1011 and the mutations, with the title reverting to parcel No. Kitale Municipality Block 15/Koitogos/1011
  5. 5.An order that the 2nd, 3rd and 4th defendants transfer the suit land to the plaintiff, and in default the Deputy Registrar to sign the necessary documents
  6. 6.The defendants to bear the costs of the suit

Authorities

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Legislation

  • Law of Contract ActSection 3(3)
  • Limitation of Actions ActSections 7, 9, 13, 37 and 38
  • Auctioneers ActCap. 526

Cases cited (10)

  • Willy Kimutai Kitilit -vs- Michael Kibet
    (2018) eKLR
  • Joseph Mathenge Kamutu -vs- Joseph Maina
    (2015) eKLR
  • Macharia Mwangi & 87 Others -vs- Davidson Kagiri
    (2014) eKLR
  • Mumo Matemu -vs- Trusted Society of Human Rights Alliance
    [2013] eKLR
  • Kahindi Ngala Mwagandi Vs Mtana Lewa
    Malindi Land Case No 108 Of 2011 (OS)
  • Githu -vs- Ndeete
    [1984] KLR 776
  • Josinter Atieno Ouma & Another V Joshua O. Omiti & Another
    [2018] eKLR
  • Kimani Ruchine & Another -vs- Swift, Rutherford Co. Ltd & Another
    [1976-80] 1 KLR 1500
  • Peter Mbiri Michuki v Samuel Mugo Michuki
    [2014] eKLR
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (claim for adverse possession over land)

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, "Alice Chemandan Siyoi v Joel Kiptoo Ng’eno & 3 others; John Thuo Gakuru(Interested Party) [2019] KEELC 1352 (KLR)", Case Analysis (2019). Originating Summons dated 3rd October 2012, Kitale. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1352/eng@2019-10-03

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